Names of City Employees Who Engaged in Misconduct Are Subject to Disclosure

This reading view follows the source PDF's positioned text blocks. Page headers, repeated office furniture, and lower-margin notes are kept out of the narrative; source notes are available below. Reconstruction is automatic and imperfect — the PDF is the authoritative version, and it's linked on this page.

Dear Mr. Pratt and Mr. Augustave:

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 2020)). For the reasons discussed below, this office concludes that the Office of Emergency Management and Communications (OEMC) of the City of Chicago (City) violated FOIA by redacting the names of two of its employees who were alleged or found to have engaged in misconduct from records responsive to Mr. Gregory Pratt's FOIA request.

BACKGROUND

On May 6, 2021, Mr. Pratt, on behalf of the Chicago Tribune, submitted a FOIA request to OEMC via e-mail! seeking copies of records related to a letter attached to his request in which City Alderman Christopher Taliaferro expressed concerns about "allegations of racial discrimination, sexual harassment, and a discipline heavy and hostile work environment at" OEMC.? On June 2, 2021, OEMC provided Mr. Pratt with copies of responsive records but redacted the name of the complainant, the name of the City employee who was the respondent of the complaint, the name of a second City employee who was found to have violated OEMC's social media policy, the names of potential witnesses to the filed complaint, and the telephone numbers of the complainant and the respondent pursuant to section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2020)). OEMC's partial denial letter also appeared to assert the information was exempt under section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2020)) by reciting some of the statutory language of that exemption.’ On June 28, 2021, Mr. Pratt submitted a Request for Review contesting the redaction of the name of an employee who was accused of sexual harassment and "formally disciplined in the form of being ordered to take classes for his documented misconduct."*5 On July 1, 2021, the Public Access Bureau forwarded a copy of the Request for Review to OEMC together with a letter asking for unredacted copies of the records from which it redacted the employee's name. The letter also requested a detailed explanation of the factual and legal bases for the applicability of the specific exemptions under which OEMC redacted the name.° Ina letter dated July 19, 2021, an attorney for the City's Department of Law furnished the requested materials on behalf of OEMC.’” On July 20, 2021, this office forwarded a copy of OEMC's response letter to Mr. Pratt. On July 21, 2021, Mr. Pratt submitted a reply.?

On August 24, 2021, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to October 12, 2021.'°

ANALYSIS

"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [FOIA]." 5 ILCS 140/1 (West 2020). Under section 1.2 of FOIA (5 ILCS 140/1.2 (West 2020)), "[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying."

Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2020)) provides that "[e]ach 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 OEMC's response to the Public Access Bureau raised three bases for withholding the names in question—sections 7(1)(b), 7(1)(c), and 7(1)(n) of FOIA (5 ILCS 140/7(1)(n) (West 2020)). This office will consider each of the exemptions.

Section 7(1)(b) of FOIA Section 7(1)(b) of FOIA exempts from disclosure "[p]rivate information, unless disclosure is required by another provision of this Act, a State or federal law or a court order." Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines "private information" as:

[U]nique identifiers, including a person's social security number, driver's license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person.

Citing Binding Opinion 12-003 (Ill. Att'y Gen. Pub. Acc. Op. No. 12-003, issued January 18, 2012), OEMC's response to this office asserted that names of City employees that appeared in the requested records are "unique identifiers," and thus a form of "private information" that is exempt from disclosure under section 7(1)(b).!' In fact, the Attorney General reached the opposite conclusion in Binding Opinion 12-003, explaining that nothing in the definition of "private information" "or in reading FOIA as a whole suggests that a person's name, or basic identification, is private information."!? This office noted that in Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 412 (1997), a case involving a request for the names and addresses of certain college freshmen, the Illinois Supreme Court concluded that names are not exempt from disclosure as "personal information.'"'? The Court found that "the phrase ‘personal information' must have been intended by the legislature to be understood not in the sense of basic identification, but in the sense of information that is 'confidential' or 'private.'"" Lieber, 176 Ill. 2d at 412.

In contrast, in Timpone v. Illinois Student Assistance Comm'n, 2019 IL App (1st) 181115, 941, 147 N.E.3d 873, 887 (2019), the Illinois Appellate Court did hold that the names of certain students were exempt under section 7(1)(b), but only because the disclosure of the students' names would link them to "detailed personal income information" that the Illinois Student Assistance Commission maintained on its website concerning applicants for and recipients of grants for low-income families. Timpone, 2019 IL App (1st) 181115, 9923, 41, 147 N.E.3d at 883, 887. The court held that disclosing information identifying individual students as applicants for and recipients of State grants for low-income families would reveal their "personal financial information," which is expressly listed as a form of "private information" in the definition of that term in FOIA. Timpone, 2019 IL App (lst) 181115, 4934, 41, 147 N.E.3d at 885, 887. The court did not conclude that names of public employees generally are exempt from disclosure under section 7(1)(b) because they would identify employees.

Disclosure of the respondent's name and that of another City employee who violated the City's social media policy would identify employees who were the subject of a misconduct complaint or found to have engaged in misconduct. Because the names do not correspond to any "unique identifiers" disclosed within the records, disclosing the respondent's name and that of the other City employee would not reveal any form of "private information." Accordingly, this office concludes that the respondent's name and that of the other City employee who violated OEMC's social media policy are not exempt from disclosure under section 7(1)(b) of FOIA.

Section 7(1)(c) of FOIA Section 7(1)(c) of FOIA exempts from disclosure "[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Section 7(1)(c) defines "unwarranted invasion of personal privacy" as "the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information." The exemption expressly provides that "[t}he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy." (Emphasis added.)

The OEMC's response to this office asserted: "Because Mr. Pratt knows the details related to the employee grievance and is looking for the names of the specific individuals involved, the release of the information would constitute an unwarranted invasion of personal privacy."'* The OEMC further contended that "redaction of the employee names is not relatively minor because they are contained within information that is embarrassing and potentially damaging to the employees’ reputations."!° According to OEMC, the City employees' right to privacy outweighs the public interest in disclosure of the names.

Mr. Pratt is seeking only the names of the City employees found to have engaged in misconduct or alleged to have engaged in misconduct. Mr. Pratt is not seeking the name of the complainant. In Gekas v. Williamson, 393 Ill. App. 3d 573, 574 (4th Dist. 2009), the Illinois Appellate Court considered whether citizen complaints against a deputy sheriff and related records were exempt from disclosure under a prior version of section 7(1)(c), which also expressly excluded from its scope information that bears on the public duties of public employees.'® The trial court had ruled that files concerning unfounded complaints could be withheld to protect the deputy's privacy interests. Gekas, 393 Ill. App. 3d at 578. The appellate court reversed, holding that records concerning alleged wrongdoing in the course of the deputy's public duties were subject to disclosure regardless of whether the underlying allegations had merit:

Complaints, founded or unfounded, that he committed misconduct in his capacity as a deputy sheriff are "information that bears on [his] public duties," and the disclosure of such information "shall not be considered an invasion of personal privacy." [Citation.] Insomuch as these materials, true or false, founded or unfounded, bear on his duties as a police officer, the disclosure of these materials would not invade his personal privacy, and, thus, we do not reach the question of whether their disclosure would be a "clearly unwarranted invasion of [his] personal privacy." [Citation.] Gekas, 393 Ill. App. 3d at 586.

See also Watkins v. McCarthy, 2012 IL App (1st) 100632, 425, 980 N.E.2d 733, 741 (2012) ("files requested by plaintiff pertaining to complaints against the officers here, which were found to be without merit, would not be exempt under" a prior version of section 7(1)(c) (5 ILCS 140/7(1)(b)(ii) (West 2008)) that is identical to the version interpreted by the court in Gekas).

The records at issue here concern: (1) a City employee's complaint of violence in the workplace and the investigation and resolution of that complaint; and (2) the finding of a violation of OEMC's social media policy based on another City employee's posting of a comment disparaging the complainant on Facebook. The workplace violence complaint involves conduct by the subject of the complaint, a City employee, while the subject was at OEMC's workplace. Such a complaint unequivocally bears on the public employee's public duties.

'SAt the time of the Gekas case, section 7(1)(b)(ii) of FOIA (5 ILCS 140/7(1)(b)(ii) (West 2006)) provided:

Although the records do not indicate whether the City employee violated OEMC's social medial policy while that employee was working or at the workplace, compliance with the social media policy is a condition of City employment. Therefore, records concerning that violation also bear on the City employee's public duties. Because the definition of "unwarranted invasion of personal privacy" in section 7(1)(c) excludes information that bears on public duties of public employees, it is unnecessary for this office to balance the employees' right to privacy against the public interest in disclosure of their names. Records that bear on the employees' public duties do not constitute a clearly unwarranted invasion of personal privacy even, as happened here with the violence in the workplace complaint, the investigation found that there was insufficient evidence to support a finding of a policy violation by one of the employees. Accordingly, this office concludes that the name of the City employee, who was the respondent to the violence in the workplace complaint, and of a second City employee, who violated the City's social media policy, are not exempt from disclosure pursuant to section 7(1)(c) of FOIA.

Section 7(1)(n) of FOIA Section 7(1)(n) of FOIA exempts from disclosure "[r]ecords relating to a public body's adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed." Black's Law Dictionary defines the word "adjudication" as "[t]he legal process of resolving a dispute; the process of judicially deciding a case." Black's Law Dictionary (11th ed. 2019), available at Westlaw BLACKS. Black's Law Dictionary further defines an "adjudication hearing" as an "[ajgency proceeding in which a person's rights and duties are decided after notice and an Spoaney to be heard." Black's Law Dictionary (11th ed. 2019), available at Westlaw BLACKS.

Applying similar definitions, the Illinois Appellate Court construed an "adjudication" for purposes of section 7(1)(n) as a "formalized legal process that results in a final and enforceable decision." Kalven v. City of Chicago, 2014 IL App (1st) 121846, 913, 7 N.E.3d 741, 745 (2014), overruled in part on other grounds by Perry v. Dep't of Financial and Professional Regulation, 2018 IL 122349, 106 N.E.3d 1016 (2018). The court also emphasized that "[t]he phrase 'related to' must be read narrowly," and held that the scope of section 7(1)(n) is limited to records generated during an adjudication; the exemption does not encompass records in Complaint Register (CR) files that document complaints against police officers and the underlying investigations. Kalven, 2014 IL App (1st) 121846, 993, 22, 7 N.E.3d at 743, 747. The court explained that even though "a substantiated complaint can result in disciplinary proceedings being instituted against an officer, those proceedings are a different matter entirely. The CRs are instead part of an investigatory process that is separate and distinct from disciplinary adjudications." Kalven, 2014 IL App (1st) 121846, 914, 7 N.E.3d at 745. In addition, the Attorney General has issued a binding opinion that distinguished an "adjudication" from an informal disciplinary proceeding. Ill. Att'y Gen. Pub. Acc. Op. No. 13-011, issued June 11, 2013, at 8 (concluding that the police chief's interviews with witnesses, their fact-based observations, and additional evidence supporting the decision to suspend an employee were not exempt from disclosure pursuant to section 7(1)(n) because.the informal disciplinary process fell short of a formalized legal process).

The OEMC's response to this office asserted that the redacted records provided to Mr. Pratt relate to OEMC's adjudication of a City employee grievance and, therefore, could have been withheld in their entireties under section 7(1)(n).!7 Although the response provided no other explanation of the assertion that the matters to which the records relate were the subject of an "adjudication[,]" the response stated that section 1604.11(f) of title 29 of the Code of Federal Regulations!® "encourages employers to ensure the confidentiality of these types of records."!9 The records in question consist of: (1) an incident report by the complainant alleging violence in the workplace; (2) a written response by the respondent-subject of the complaint; (3) a record documenting a coaching session to address unwelcome comments of a sexual nature made by the respondent-subject of the complaint and to prevent such comments from occurring in the future (the document indicates that the coaching is not discipline but cautions the employee that comments of this nature could result in discipline); (4) a memoranda explaining that the investigation concluded that there was insufficient evidence to sustain the allegations of workplace violence against the respondent-subject of the complaint; and (5) a document that provides coaching to address a violation of OEMC's social media policy by a second City employee, which indicates that future improper social media communications would result in discipline.

Based on this office's review, the records at issue in this matter are similar to the records described in Kalven that documented complaints and investigations of complaints before any adjudications occurred. There is no indication that the allegations of inappropriate comments and workplace violence and the finding that the City employee violated OEMC's social media policy were generated in connection with a formal agency proceeding. Rather, it appears that OEMC informally addressed each matter without any kind of hearing or proceeding that could constitute an "adjudication." Accordingly, OEMC has not sustained its burden of demonstrating that the redacted names of the respondent-subject of the complaint and the City employee who was found to have violated OEMC's social media policy are exempt from disclosure under section 7(1)(n) of FOIA.

Lastly, the City raised section 1604.11(f) of title 29 of the Code of Federal Regulations as a basis for withholding the requested names. Section 1604.1 1(f) provides:

Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under title VII, and developing methods to sensitize all concerned.

The language of section 1604.11(f) does not bear upon the disclosure of records under FOIA and cannot be reasonably construed to "encourage" OEMC to withhold the names of employees accused of misconduct. Further, no provision of FOIA prohibits the disclosure of records where a statute's implementing rules "encourage" public bodies to withhold information from disclosure. In contrast, section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2020)) exempts "[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law." (Emphasis added.) The Illinois Appellate Court has observed that "an exemption restricting the expansive nature of the FOIA's disclosure provisions must be explicitly stated--that is, such a proposed disclosure must be specifically prohibited." (Emphasis in original.) Better Gov't Ass'n v. Blagojevich, 386 Ill. App. 3d 808, 816 (4th Dist. 2008). Section 1604.11(f) of title 29 of the Code of Federal Regulations does not pertain to FOIA or specifically prohibit disclosure of any records or information under FOIA.

FINDINGS AND CONCLUSIONS

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

1) On May 6, 2021, Mr. Pratt, on behalf of the Chicago Tribune, submitted a FOIA request to OEMC of the City of Chicago seeking copies of records related to a letter attached to his request in which a City alderman expressed concerns about allegations of discrimination, harassment, and a hostile work environment at OEMC.

2) On June 2, 2021, OEMC provided copies of responsive records but redacted City employee names and telephone numbers. OEMC's written response stated that it redacted the information pursuant to section 7(1)(b) of FOIA; the response also appeared to assert that the information was exempt from disclosure pursuant to section 7(1)(c) by reciting the statutory | language of that exemption. a 3) On June 28, 2021, Mr. Pratt submitted a Request for Review contesting the redaction of the name of a City employee who Mr. Pratt stated was accused of harassment and disciplined for posting retaliatory messages on social media. Mr. Pratt's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)).

4) On July 1, 2021, the Public Access Bureau forwarded a copy of the Request for Review to OEMC together with a letter asking for unredacted copies of the records from which OEMC redacted the City employee's name. The letter also requested a detailed explanation of the factual and legal bases for the applicability of the specific exemptions under which OEMC redacted the name.

5) On July 19, 2021, an attorney for the City's Department of Law furnished the requested materials on behalf of OEMC. The written response asserted that the City employee names redacted from the records were exempt from disclosure pursuant to sections 7(1)(b), 7(1)(c), and 7(1)(n) of FOIA; the response also cited section 1604.11(f) of the title 29 of the Code of Federal Regulations as a basis for redacting the names.

6) On July 20, 2021, this office forwarded a copy of OEMC's response letter to Mr. Pratt. On July 21, 2021, Mr. Pratt submitted a reply.

7) On August 24, 2021, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to October 12, 2021. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter.

8) Section 7(1)(b) exempts from disclosure "private information," which the Act defines to include various "unique identifiers" such as home addresses, personal telephone numbers, and social security numbers. Names are not included in FOIA's definition of "private information." Because names alone are not defined as "private information" and because the disclosure of names here would not link the employees accused of misconduct to any "private information" disclosed within the records Mr. Pratt received, the names of the indicated City employees are not exempt from disclosure pursuant to section 7(1)(b) of FOIA.

9) Section 7(1)(c) exempts from disclosure "[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Section 7(1)(c) expressly provides that "[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy."

10) Records concerning alleged workplace misconduct and violations of policies that are cond:tions of employment directly bear on the public duties of public employees.

Therefore, the names of the City employee who was the subject of a workplace violence complaint and a City employee who was found to have violated OEMC's social media policy are not exempt from disclosure pursuant to section 7(1)(c) of FOIA.

11) Section 7(1)(n) of FOIA exempts from disclosure "[rJecords relating to a public body's adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed."

12) The records in question consist of a City employee's complaint and documentation of an investigation and resolution of that complaint, and a finding that a City employee violated OEMC's social media policy. The available information indicates that these matters were resolved by the City without advancing to a formal agency proceeding that constituted an adjudication. Accordingly, OEMC has not sustained its burden of demonstrating that the names of City employees are exempt from disclosure pursuant to section 7(1)(n) of FOIA.

13) Section 1604.11(f) of title 29 of the Code of Federal Regulations recommends that employers take preventative measures to prevent sexual harassment, such as informing employees of their rights and sanctioning employees who engage in misconduct. This provision, which does not prohibit disclosure of any records or information, does not pertain to FOIA. Thus, section 1604.11(f) of title 29 of the Code of Federal Regulations provides no basis for OEMC to redact the names of the City employees at issue in this matter.

Therefore, it is the opinion of the Attorney General that the Office of Emergency Management and Communications has violated section 3(d) of FOIA by improperly redacting from the records responsive to Mr. Pratt's request the name of a City employee who was the subject of a workplace violence complaint as well as the name of a City employee who was found to have violated OEMC's social media policy. Accordingly, OEMC is hereby directed to take immediate and appropriate action to comply with this opinion by disclosing the names of the City employee who was the respondent-subject of a workplace violence complaint and of the City employee who was found to have violated OEMC's social media policy in a supplemental response to Mr. Pratt's request.

This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2020). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Gregory Pratt as defendants. See 5 ILCS 140/11.5 (West 2020).

Sincerely,

KWAME RAOUL ATTORNEY GENERAL

By: Bret 7%. Strotio~ Brent D. Stratton Chief Deputy Attorney General ce: M. Mason Office of Emergency Management and Communications City of Chicago 1411 West Madison Street Chicago, Illinois 60607 copy of the foregoing Binding Opinion (Public Access Opinion 21-010) upon:

Mr. Gregory Pratt Chicago Tribune 560 West Grand Avenue Chicago, Illinois 60654 [email protected] Mr. Marc Augustave Senior Counsel City of Chicago Department of Law 2 North LaSalle Street, Suite 640 Chicago, Illinois 60602 Marc. [email protected] M. Mason Office of Emergency Management and Communications City of Chicago 1411 West Madison Street Chicago, Illinois 60607 [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 therof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on October 12, 2021.

eae STEVE SILVERMAN Chief, Public Access Bureau Steve Silverman Public Access Bureau Illinois Attorney General 100 W. Randolph Street 11‘ Floor Chicago, Illinois 60601 (312) 814-6756 [email protected]