Disclosure of Information Related to State Employees Designated as Essential

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Dear Mr. O'Connor and Ms. Lindsay: |

This is a binding opinion issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons discussed below, this office concludes that the Illinois Department of Corrections (DOC) violated the requirements of FOIA by improperly denying Mr. John O'Connor's February 16, 2017, FOIA request. : | - BACKGROUND On February 16, 2017, Mr. O'Connor, on behalf of the Associated Press, submitted a FOIA request to IDOC seeking records "sufficient to show the job titles, locations, and numbers of employees in each category which the Department of Corrections considers essential and who would be required to report to work in the event of interruption in state employee pay and the closing of some offices and services." On February 24, 2017, IDOC denied the request by stating that, "to the extent [documents] exist, [the documents] are exempt from production pursuant to Section 7(1)(m) of" FOIA (5 ILCS 140/7(1)(m) (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016). In addition, IDOC stated that the records "are exempt from production pursuant to Section 7(1)(f of" FOIA (5 ILCS 140/7(1)() (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016.2 On February 27, 2017, the Public Access Counselor and the Public Access Bureau received Mr. O'Connor's Request for Review contesting IDOC’s denial of his FOIA request.’

On March 1, 2017, the Public Access Bureau sent a copy of the Request for Review to IDOC and asked it to clarify whether IDOC possessed records responsive to Mr. O'Connor's request. If IDOC determined that it did not possess responsive records, then this office’s letter requested that IDOC provide a detailed description of its search for such records, including the individuals and departments that were contacted.‘ -The March 1, 2017, letter also requested that if IDOC determined that it possessed responsive records, IDOC provide a copy of those records for the Public Access Bureau's confidential review together with a detailed explanation of the factual and legal bases relied upon for the assertion of the section 7(1)(f) and section 7(1)(m) exemptions.> On March 13, 2017, IDOC provided the Public Access Bureau with a written response in which it acknowledged that "[t]he responsive records in this matter are a list of staff which are [sic] deemed essential in case of a work stoppage.” © IDOC declined, however, to furnish the requested records to the Public Access Bureau for its confidential review. IDOC's response further withdrew its assertion of section 7(1)(f) of FOIA, but reiterated its 'Letter from John O'Connor, Reporter, Associated Press, to Lisa Weitekamp, Illinois Department of Corrections (February 16, 2017).

2Letter from Lisa Weitekamp, Freedom of Information Officer, IHinois Department of Corrections, — to John O'Connor (February 24, 2017).

contention that the list was exempt under section 7(1)(m) of FOIA.’ On March 17, 2017, an Assistant Attorney General in the Public Access Bureau sent IDOC an e-mail again requesting copies of the withheld records. On March 21, 2017, the Public Access Bureau forwarded a copy of IDOC's written response to Mr. O'Connor;? he did not reply to that response.

nig On March 23, 2017, IDOC sent the Public Access Bureau a letter stating that it "formally withdraws its letter submitted to you on March 13, 2017 regarding the above- captioned matter. That letter should have received additional authorization prior to release; therefore, it has no effect. This letter constitutes the Department's sole response on this matter. IDOC asserted that "to the extent records responsive to Mr. O'Connor's request exist," those records would be exempt under section 7(1)(m) of FOIA.'! IDOC's March 23, 2017, response did not specifically reference section 7(1)(f).'7 IDOC again declined to furnish the Public Access Bureau with copies of responsive records for its confidential review, citing the ongoing litigation in AFSCME y, Rauner, No. 121984 (Ill. S.Ct).!>_ On March 24, 2017, the Public Access Bureau sent a copy of IDOC's March 23, 2017, response to Mr. O'Connor;'* he did not reply to that response.

On April 27, 2017, thé Public Access Bureau properly extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA."

ANALYSIS

"All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS 140/1.2 (West 2014). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) further provides: "Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act." The exemptions from disclosure contained in section 7 of FOIA (5 ILCS 140/7 (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, 2016) are to be narrowly construed. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill, 2d 401, 407 (1997).

Section 9(a) of FOIA As a threshold matter, section 9(a) of FOIA (5 ILCS 140/9(a) (West 2014)) requires a public body that denies a request for records to provide the requester with written notification of the "the reasons for the denial, including a detailed factual basis for the application of any exemption claimed[.]" IDOC's February 24, 2017, response to Mr. O'Connor's request simply identified the reasons for the denial as "Section 7(1)(f)" and "Section 7(1)(m)" of FOIA and quoted the statutory language of those exemptions. IDOC's response did not, however, include any factual basis or any other information supporting the applicability of the asserted exemptions. With respect to section 7(1)(f), the response did not provide any explanation of how the records constituted predecisional materials or how the disclosure of such records would reveal IDOC's deliberative process. Likewise, IDOC's March 23, 2017, response did not explain how the records constituted attorney-client communications or work-product within the scope of section 7(1)(m). In fact, IDOC's response to the FOIA request did not even confirm whether responsive records exist. Because IDOC's response did not include a factual basis supporting either of its claimed exemptions, the Public Access Bureau concludes that IDOC's denial of Mr. O'Connor's request did not satisfy the requirements of section 9(a) of FOIA.

Further, because IDOC's February 24, 2017, response to Mr. O'Connor's request did not directly acknowledge whether it possessed responsive records but instead asserted that any responsive records that exist are exempt from disclosure pursuant to sections 7(1)(f) and 7(1)(m), this office requested that IDOC clarify whether it possessed records responsive to Mr. O'Connor's request. If it asserted that it did not possess records, this office asked IDOC to provide a detailed explanation of the search that it undertook to identify whether it possessed records responsive to Mr. O'Connor's requests.!° IDOC's March 23, 2017, response to the Public Access Bureau similarly did not specify whether it possessed responsive records or whether it conducted an appropriate search for responsive records. Instead, IDOC stated that, "to the extent records responsive to Mr. O'Connor's request exist,” those records would have been created by its chief legal counsel and would have only been shared with labor and employment attorneys at the Illinois Department of Central Management Services.'’ Section 3(d) of FOIA (5 ILCS 140/3(d) (West 2014)) provides that "[e]Jach public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time for response is properly extended under subsection (e) of this Section." The options available under FOIA do not include responding in the hypothetical, by claiming that any responsive documents that may exist are exempt without acknowledging the existence of responsive records.

IDOC's response also referred to the requested records as "lists" and stated that "{t]he documents requested by Mr. O'Connor are thus key to ongoing litigation on the issue of employee pay."'® IDOC also refused to provide the Public Access Bureau with "copies of records that may exist."'? Such an ambiguous response does not provide a detailed factual basis for the application of any exemption as required by section 9(a) of FOIA. Indeed, it is unclear whether IDOC is denying public records in its possession, or simply does not possess the records Mr. O'Connor is seeking. IDOC has provided no justification for failing to clarify whether it possesses records, and none is apparent to this office. Despite the qualifying language in IDOC's response to the FOIA request and to this office, the clear inference is that IDOC does possess records responsive to Mr. O'Connor's request which it asserts are exempt from disclosure.

Therefore, this office will analyze the applicability of sections 7(1)(m) and 7(1)(f) of FOIA based on the available and somewhat contradictory information. This office's ability to conduct a full and complete review of this matter, however, is limited by IDOC'’s failure to provide the records to the Public Access Bureau for its confidential review as required by section 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2014)), which provides that "[w]ithin 7 business days after receipt of the request for review, the public body shall provide copies of records requested and shall otherwise fully cooperate with the Public Access Counselor." (Emphasis added.)

Section 7(1)(m) of FOIA Section 7(1)(m) of FOIA protects from disclosure certain communications of attorneys and provides:

Communications between a public body and an attorney * * * representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body]. ]

IDOC asserted that "to the extent records responsive to Mr. O'Connor's request exist, they would include the legal reasoning whereby certain Department employees may be classified as essential, and would have been created by [Camile Lindsay] in [her] role as the Department's chief legal counsel."”° IDOC claimed that such records "would also represent attorney-work product and communications created in anticipation of litigation."*'! This office construes IDOC’s response as asserting that the records at issue are not subject to discovery because they are protected by the attorney-client privilege and the work-product doctrine.

The Illinois Supreme Court has identified the following elements of the attorney client privilege: "(1) where legal advice of any kind is sought, (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are permanently protected, (7) from disclosure by himself or the legal advisor, (8) except the protection be waived.” J//, Education Ass'n v. Ill. State Board of Education, 204 Ill. 2d 456, 467 (2003). A public body that withholds records as attorney-client privileged under section 7(1)(m) of FOIA must provide a supporting factual basis for the application of the exemption: | [I]n meeting its burden, the public body may not simply treat the words "attorney-client privilege" or "legal advice" as some talisman, the mere utterance of which magically casts a spell of secrecy over the documents at issue. Rather, the public body can meet its burden only by providing some objective indicia that the exemption is applicable under the circumstances. (Emphasis in | original.) J//. Education Ass'n, 204 Ill. 2d at 470.

The work-product doctrine set out in Illinois Supreme Court Rule 201(b)(2) provides that "[m]aterial prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party's attorney." A public body asserting that records are attorney work-product must demonstrate that the records "reveal the shaping process by which the attorney has arranged the available evidence for use in trial as dictated by his training and experience[.]' [Citation.]" Monier v. Chamberlain, 35 Ill. 2d 351, 359 (1966). However, "[a|ny relevant material generated in preparation for trial which does not disclose ‘conceptual data’ is freely discoverable under Rule 201(b)(2)." Holland v. Schwan's Home Services, Inc., 2013 IL App (Sth) 110560, 4205, 992 N.E.2d 43, 86 (2013), quoting Waste Management, Inc. v. International Surplus Lines Ins. Co., 144 Ill, 2d 178, 196 (1991).

IDOC's explanation for its assertions that the responsive records are attorney- client privileged communications and attorney work-product are conclusory. IDOC merely stated that the records would include the legal reasoning of IDOC's chief legal counsel, that they have remained in her possession and have been shared only with labor and employment attorneys with the Illinois Department of Central Management Services, and that they constitute attorney work-product that has not been publicly cited by the IDOC's Director. IDOC has not provided, however, any factual basis, supporting legal authority, or objective indicia demonstrating that any responsive records are in fact (1) communications with an attorney acting as a legal advisor and relating to legal advice;*? or (2) materials created in preparation for trial that would reveal the theories, mental impressions or litigation plans of the attorney. Accordingly, IDOC has not sustained its burden of demonstrating by clear and convincing evidence that responsive records are exempt from disclosure pursuant to section 7(1)(m) of FOIA.

Section 7(1)(f) of FOIA Although IDOC did not specifically cite the section 7(1)(f) exemption in its March 23, 2017, response to this office, IDOC denied Mr. O'Connor's FOIA request pursuant to section 7(1)(f) as well as section 7(1)(m). Section 7(1)(f) exempts from disclosure "(p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body." The section 7(1)(f} exemption is equivalent in most respects to the deliberative process exemption in the Federal FOIA (5 U.S.C. §552(b)(5) (2012)), which applies to "inter- and intra-agency predecisional and deliberative material." Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The exemption is "intended to protect the communications process and encourage frank and open discussion among agency employees before a final decision is made." Harwood, 344 Ill. App. 3d at 248. However, "'[o]nly those portions of a predecisional document that reflect the give and take of the deliberative process may be withheld." Kalven v. City of Chicago, 2013 IL App (1st) 121846, 924, 7 N.E.3d 741, 748 (2013) (quoting Public Citizen, Inc. v. Office of Management & Budget, 598 F.3d 865, 876 (D.C. Cir, 2010)). The Illinois Appellate Court also has stated that "purely factual material’ is not exempt from disclosure under section 7(1)(f) unless it is "inextricably intertwinedTM with predecisional discussions. Watkins v. McCarthy, 2012 IL App (1st) 100632, 436, 980 N.E.2d 733, 743 (2012) (quoting Enviro Tech International, Inc. v. United States Environmental Protection Agency, 371 F.3d 370, 374-75 (7th Cir. 2004)).

IDOC's March 23, 2017, response to this office stated: "By virtue of the fact that these job titles and positions would be tethered to specific analyses regarding the essential status of employees, these lists would represent records of recommendations, in which opinions are expressed and actions are formulated. * * * Director Baldwin would never publicly cite these documents[.}]"2?_ Even assuming that response was intended to address the applicability of section 7(1)(f), IDOC did not explain how these records consist of predecisional and deliberative materials, or contain factual material that is inextricably intertwined with deliberative discussions. Instead, IDOC simply asserted that the records relate to analyses regarding the essential status of employees and that they have not been publicly cited by IDOC's Director. Because IDOC has not provided this office with a factual basis for its assertion that the records at issue constitute records in which opinions are expressed, or actions or policies are formulated, IDOC has not sustained its burden of demonstrating by clear and convincing evidence that those records are exempt from disclosure pursuant to section 7(1)(f) of FOIA.

FINDINGS AND CONCLUSIONS

After full examination and giving due consideration to the available information, the Public Access Counselor's review, and the applicable law, the Attorney General finds that:

1) On February 16, 2017, Mr. John O'Connor, on behalf of the Associated Press, submitted a FOIA request to IDOC seeking records concerning the job titles, locations, and numbers of employees in each category which IDOC considers essential and who would be required to report to work in the event of an interruption in pay.

2) On February 24, 2017, IDOC denied the request in its entirety stating that if responsive records existed, the records would be exempt pursuant to sections 7(1)(f) and 7(1)(m) of FOIA. IDOC did not provide a detailed factual explanation supporting its assertion of either exemption.

3) On February 27, 2017, the Public Access Bureau received a Request for Review from Mr. O'Connor contesting the denial of his FOIA request. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA.

4) On March I, 2017, the Public Access Bureau sent a copy of the Request for Review to IDOC and asked it to clarify whether IDOC possessed responsive records. If IDOC did possess responsive records, the letter requested that IDOC provide a copy of those records for this office's confidential review together with a detailed explanation of the factual and legal bases for its assertion of the sections 7(1)(f) and 7(1)(m) exemptions. Alternatively, if IDOC asserted that it did not possess responsive records, this office asked IDOC to provide a detailed explanation of how it conducted its search for records.

5) On March 13, 2017, IDOC provided this office with a written response; it declined to provide the Public Access Bureau with copies of the responsive records.

6) On March 21, 2017, the Public Access Bureau forwarded a copy of IDOC's written response to Mr. O'Connor; he did not reply to IDOC's response.

7) On March 23, 2017, IDOC provided this office with a second written response in which it withdrew its March 13, 2017, response. The response, which did not specifically address the section 7(1)(f)} exemption, asserted that any records responsive to Mr. O'Connor's request are exempt from disclosure pursuant to section 7(1)(m) of FOIA. IDOC continued to decline to furnish the requested records to this office.

8) On March 24, 2017, the Public Access Bureau forwarded a copy of IDOC's second written response to > Mr. O'Connor; he didn not reply to that. response, either, 9) Pursuant to 9.5(f) of FOIA, this office properly extended the time fori issuing a binding opinion by 30 business days to June 12, 2017. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter.

10) Section 9(a) of FOIA requires a public body denying a request to set forth "the reasons for the denial, including:a detailed factual basis for the application of any exemption claimed[.]" IDOC did not acknowledge that it possessed responsive records, yet claimed that any records it might possess would be exempt from disclosure. IDOC's original response to Mr. O'Connor's request cited sections 7(1){f) and 7(1)(m) of FOIA as the reasons for its denial, but failed to provide any explanation supporting the applicability of those exemptions. Such a response is improper under FOIA, because the validity of the asserted exemptions cannot be determined without confirmation that responsive records exist.

11) Conclusory assertions that records contain attorney-client communications or attorney work-product do not render records exempt from disclosure under section 7(1)(m) of FOIA. Because neither IDOC's response to Mr. O'Connor's request nor its response to this office related to Mr. O'Connor's Request for Review has provided clear and convincing evidence demonstrating that the records at issue (if such records exist) reflect privileged communications made by an attorney acting in the capacity of a legal advisor or that the records were created in preparation for trial and reveal the attorney's mental impressions or litigation plans, this office concludes that IDOC has not sustained its burden of demonstrating that the records are exempt from disclosure pursuant to section 7(1)(m) of FOIA.

12). In addition to not providing a detailed factual basis for the application of section 7(1)(f) in its response to Mr. O'Connor's FOIA request, IDOC did not specifically reference that exemption in its March 23, 2017, response to this office related to the Request for Review. Therefore, [DOC's assertion of section 7(1)(f) is conclusory and does not provide factual or legal support. Because IDOC has not provided clear and convincing evidence. demonstrating that the records at issue contain predecisional and deliberative material in which opinions are expressed, or policies or actions are formulated, this office concludes that IDOC has not sustained its burden of demonstrating that the records are exempt from disclosure pursuant to section 7(1)(f) of FOIA.

Therefore, it is the opinion of the Attorney General that IDOC's response to Mr. O'Connor's Freedom of Information Act request violated the requirements of section 9(a) of FOIA. Accordingly, IDOC is directed to take immediate and appropriate action to comply with this opinion by disclosing to Mr. O'Connor records showing the job titles, locations, and numbers of employees in each category which IDOC considers essential and who would be required to report to work if there was an interruption in State employee pay.

This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2014). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and John O'Connor as defendants. See 5 ILCS 140/11.5 (West 2014).

Very truly yours,

LISA MADIGAN ATTORNEY GENERAL

py, Cece Lan he Michael J. Luke Counsel to the Attorney General copy of the foregoing Binding Opinion (Public Access Opinion 17-006) upon:

Mr. John O'Connor Reporter The Associated Press Statehouse Pressroom Room 13G Basement Springfield, Illinois 62706 yoconnor @ap.org Ms. Camile Lindsay Chief Legal Counsel Illinois Department of Corrections 1301 Concordia Court P.O. Box 19277 Springfield, Illinois 62794-9277 camite.} [email protected] by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Springfield, Illinois on June 12, 2017.

SARAH L. PRATT: Public Access Counselor SARAH L. PRATT Public Access Counselor Office of the Attorney General