Names Not Exempt as Personal Information Absent Private or Confidential Circumstances that Outweigh Any Legitimate Public Interest in Disclosure

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Dear Mr. Czosnyka and Ms. Rivera:

This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons discussed below, this office concludes that the Office of the City Clerk of the City of Chicago (City Clerk's Office) violated the requirements of FOIA by improperly partially denying Mr. Peter Czosnyka's FOIA request for letters of exception for residential parking in the 45th Ward.

BACKGROUND

On Saturday, March 27, 2021, Mr. Czosnyka submitted a FOIA request to the City Clerk's Office seeking "[e]lectronic copies of Letter of Exception: Residential Parking’

issued in the 45th Ward between 5/20/19 thru 3/30/21, showing NAMESJ.]"! (Emphasis in original.) In his FOIA request, Mr. Czosnyka quoted a portion of Attorney General Binding Opinion No. 12-003, in which this office explained that names generally are not exempt from disclosure under section 7(1)(c), absent confidential or private circumstances.”

On Monday, March 29, 2021, the City Clerk's Office acknowledged receipt of Mr. Czosnyka's FOIA request. On April 5, 2021, the City Clerk's Office properly? extended the time to respond to the FOIA request by five business days pursuant to sections 3(e)(v) and 3(e)(vii) of FOIA (5 ILCS 140/3(e)(v), (e)(vii) (West 2020)).4 On April 12, 2021, the City Clerk's Office provided Mr. Czosnyka with copies of letters of exception signed by 45th Ward Alderman James M. Gardiner during the requested time period, but redacted the subjects' names, home addresses, vehicle makes/models, and license plate numbers pursuant to sections 7(1)(b) and 7(1)(c) of FOIA (5 ILCS 140/7(1)(b), (1)(c) (West 2020)).° On April 15, 2021, Mr. Czosnyka attempted to submit a Request for Review by e- mail to the Attorney General's Public Access Counselor. Because of technical difficulties with this office's computer network, Mr. Czosnyka's Request for Review was returned as undeliverable. By correspondence dated May 4, 2021, postmarked May 5, 2021, and sent through the United State Postal Service, Mr. Czosnyka filed a Request for Review that contested the denial of the names of those persons seeking an exception to the residential parking residency requirements in the City of Chicago's 45" Ward.® Mr. Czonsnyka's Request for Review included a copy of one redacted letter as a representative sample of the records he received from the City Clerk's Office.

On May 12, 2021, the Public Access Bureau sent a copy of the Request for Review to the City Clerk's Office’s Chief Legal Counsel, Ms. Ennedy Rivera. The Public Access Bureau also sent Ms. Rivera a letter asking for unredacted copies of the responsive records for this office's confidential review, and a detailed written explanation of the City Clerk's Office's legal and factual bases for redacting the subjects’ names.’ In particular, this office asked: the City Clerk's Office to explain "what makes the names highly personal or objectionable to a reasonable person to disclose in this context and why the subjects’ right to privacy outweighs any legitimate public interest in disclosure."® ' On May 28, 2021, the City Clerk's Office provided this office with the requested materials and its explanation for the redactions, maintaining that it properly redacted the subjects names.” On June 1, 2021, this office forwarded a copy of the City Clerk's Office's answer to Mr. Czosnyka and notified him of his Opportunity to reply.!° On that same date, Mr. Czosnyka submitted a reply.'!

On June 11, 2021, this office properly extended the time within which to issue a binding opinion by 30 business days, to July 27, 2021, pursuant to section 9.5(f) of FOIA.'*

ANALYSIS

Section | of FOIA (5 ILCS 140/1 (West 2020)) declares that "it is the public policy of the State of Illinois that access by all persons to public records promotes the transparency and accountability of public bodies at all levels of government.” Under FOIA, "[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS 140/1.2 (West 2020).

The City Clerk's Offices has raised two bases for withholding the names in question -- sections 7(1)(b) and 7(1)(1)(c) of FOIA. We 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.

Mr. Czosnyka did not contest the City Clerk's Office's redaction of two unique identifiers contained in the records: home addresses and license plate numbers. He also did not contest the redaction of the makes and models of the subjects' cars. Mr. Czosnyka contested only the City Clerk's Office's denial of the subjects' names. Therefore, this office's review will be limited to the redaction of names.

In Binding Opinion No. 12-003, this office explained 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 (1997), a case about a request for the names and addresses of certain college freshmen, the IHinois Supreme Court explained 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 its response to this office, the City Clerk's Office argued that Lieber is outdated, as it involved a previous version of FOIA. At the time of the FOIA request in Lieber, section 7(1)(b) of FOIA contained language now found in section 7(1)(c) of FOIA, exempting from disclosure "[i]nformation that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy." 5 ILCS 140/7(1)(b) (West 1994). Citing Timpone v. Illinois Student Assistance Commission, 2019 IL App (1st) 181115, 147 N.E.3d 873 (2019), the City Clerk's Office argued that Lieber "was decided in an era when privacy expectations were different and disclosing names of all admitted students would not have revealed any distinguishing information about the individual."'* In Timpone, however, the Illinois Appellate Court held that the names of all students who received college grants through the State's Monetary Award Program were exempt from disclosure as "personal financial information” under the current version of section 7(1)(b). Timpone, 2019 IL App (Ist) 181115, 934, 147 N.E.3d at 885. The Timpone court found that Lieber was not of relevance to the issue of whether the names of students receiving financial assistance from the State should be disclosed because the language of the exemptions was different at the time, privacy expectations also were different, and "disclosing the names of all admitted students would not have revealed any distinguishing information about those individuals." Timpone, 2019 IL App (Ist) 181115, 935, 147 N.E.3d at 885. Thus, the court in Timpone did not conclude that names are now broadly exempt from disclosure under section 7(1)(b), but instead that disclosing information identifying particular students as recipients of State grants for low-income families would reveal "personal financial information" about them, which is a form of "private information" under the plain language of the definition of that term in FOIA.

Here, in contrast, the City Clerk's Office did not demonstrate that the disclosure of the names would reveal information that meets the plain language of the definition of "private information.” To the extent that an individual could use the names in conjunction with other publicly-available information to potentially discover information that does fall within the scope of the definition, such as the subjects’ home addresses, the exemption does not encompass information that could be used to discover unique identifiers. The information itself must be "private information" to be exempt from disclosure under section 7(1)(b). Under these circumstances, the City Clerk's Office failed to sustain its burden of proving by clear and convincing evidence that the names alone are exempt from disclosure under section 7(1)(b).

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 '4Letter from Ennedy D. Rivera, Chief Legal Council. Office of the City Clerk, to Joshua Jones.

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 also 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."

A public body's assertion that the release of information would constitute an unwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago Journeymen Plumbers' Local Union 130 v. Dep't of Public Health, 327 Ill. App. 3d 192, 196 (Ist Dist. 2001). The condition that the invasion of personal privacy must be "clearly unwarranted"

evinces a strict standard to claim the exemption. Schessler v. Dep't of Conservation, 256 Ill. App. 3d 198, 202 (4th Dist. 1994). Illinois courts balance the following factors in determining whether disclosure of information would constitute an unwarranted invasion of personal privacy:

"(1) the plaintiff's interest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative means of obtaining the requested information.” National Ass'n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 13 (1st Dist. 2010).

Under the first two factors of the balancing test, the City Clerk's Office argued that Mr. Czosnyka's "sole intent in obtaining information is for his own personal gains to leverage his social media blog and continue elevating his Chicago Tribune article. His request to obtain the residents’ names has no real bearing on city government and more with invading a private citizen[']s right to privacy."'> The City Clerk's Office provided a link to the article, which quoted Mr. Czosnyka's perspective on how the law works in practice for members of the public.'° The City Clerk's Office further claimed that "Mr. Czosnyka not only lives in the 45th Ward, he has a well-developed social media blog that has been known to harass elected officials."'’ Additionally, the City Clerk's Office argued that "(t}]here is no real interest in the public obtaining such disclosure. * * * There is no need to know the names besides harassing a resident."'® In his reply, Mr. Czosnyka disputed these characterizations of his interest in the names as baseless and argued that his request has a public interest because of allegations of misconduct against the 45th Ward Alderman.'” Mr. Czosnyka provided links to a CBS Chicago news article and investigative news video segments about a building owner's complaint to the City's Office of Inspector General alleging that Alderman Gardiner retaliated against her for criticizing him on social media by denying parking exceptions for her building's residents.”° As a resident of the 45th Ward, Mr. Czosnyka has a personal interest in alleged abuses of power and keeping track of how the alderman of that ward performs his public duties. This interest aligns with the broad public interest in monitoring the affairs of local government to hold public officials accountable. The City Clerk's Office's argument raises the principle that [t]he core purpose of the FOIA is to expose what the government is doing, not what its private citizens are up to.” Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 IN. App.

3d 188, 211 (Ist Dist. 2004) (quoting Lakin Law Firm, P.C. v. F.T.C., 352 F.3d 1122, 1124 (7th Cir. 2003)). Yet, contrary to the City Clerk's Office's claims, it is evident that Mr. Czosnyka's request concerns what the alderman of the 45th Ward is doing with his position. In light of the news reporting on alleged retaliation with respect to residential parking permit exceptions in the ward, the City Clerk's Office's claim that there is no real public interest in disclosure of the names is unsupported. The disclosure of the names would give the public the opportunity to assess the merits of the allegations that the alderman selectively denied exceptions to certain individuals and not others for improper reasons.

As to the City Clerk's Office's claim that Mr. Czosnyka seeks the names for publishing stories on his blog, on June 2, 2021, an Assistant Attorney General in the Public Access Bureau asked Mr. Czosnyka clarify whether he maintains any kind of website or '*Letter from Ennedy D. Rivera, Chief Legal Council, Office of the City Clerk, to Joshua Jones.

webpage where he posts information on local topics like the parking exceptions.” Mr. Czosnyka replied: "I do post and comment on Facebook and I have commented, repeatedly, mostly on other FB pages, about what I see as Alderman Gardiner's petty and vindictive behavior regarding Ward permit parking and parking exceptions. I do not run a blog."”* Thus, there is no indication that Mr. Czosnyka has a pecuniary or somehow improper personal interest in disclosure. The fact that Mr. Czosnyka posts and comments on Facebook about how his alderman performs his public duties also does not undermine the public interest in disclosure.

Addressing the subjects’ privacy interests, the City Clerk's Office argued:

[T]he names redacted are that of City of Chicago residents that sought a service from their Alderman to be able to park in a zone not normally afforded to them. These residents’ names have not been published and as such have an expectation of privacy (as a reasonable person would) that their information would not be disclosed to a third party. With the increased use of social media, social blogs, and the internet comes the increase of social media bullying, stalking, and harassment. The release of names would reveal distinguishing information about the individual with just a simple google search,|?#!

The City Clerk's Office additionally argued:

There is an actual possibility of there being an invasion of privacy as the Office of the City Clerk has previous FOIA requests asking ‘for the addresses of said 45th Ward residents. Should the release of names occur, Mr. Czosnyka would have cnough private information regarding 45th Ward residents to pin point the addresses of individuals that solely sought a City service to make their private lives easier.!*41 7!E-mail from Joshua M. Jones to Pete Czosnyka (June 2, 2021).

“E-mail from Pete Czosnyka to Joshua M. Jones (June 2, 2021).

Letter from Ennedy D. Rivera, Chief Legal Council, Office of the City Clerk. to Joshua Jones. Deputy Bureau Chief, Public Access Bureau (May 28, 2021), at [2-3].

Letter from Ennedy D. Rivera, Chief Legal Council, Office of the City Clerk, to Joshua Jones, In his reply, Mr. Czosnyka argued that although "the public is not privy to truly private/personal information like vehicle license plate numbers, social security numbers, or driver's license numbers[,]" "[t]he public should know who the Alderman is granting favors to[.]"”° Under the plain language of section 7(1)(c), the information at issue must meet at least one of two threshold requirements: it must either be highly personal, or objectionable to a reasonable person to disclose. The City Clerk's Office did not demonstrate that the subjects’

names meet either requirement. While requesting a parking permit exception may be somewhat personal, the City Clerk's Office did not demonstrate that such circumstances rise to the level of highly personal. See Schessler, 256 Ill. App. 3d at 202 (holding that the right to privacy in applications for permits for live pigeon shooting events was "not high," and therefore the applications were subject to disclosure despite the lack of a strong public interest in disclosure). The letters of exception do not set forth any reasons why the exceptions were requested. Disclosing the names would not reveal any information about the subjects' personal lives except that they sought residential parking permit exceptions in certain zones of the Ward. Therefore, unlike instances in which disclosing a member of the public's name would offend reasonable sensibilities by revealing private or confidential information in the context of the records, it is not evident from the City Clerk's Office's argument that disclosure of the names in the bureaucratic, commonplace context of the letters of exception would be objectionable to a reasonable person.

Even assuming that disclosing the names would be objectionable to a reasonable person, section 7(1)(c) sets forth an additional requirement not met here: the privacy interests must be significant enough to outweigh any legitimate public interest in disclosure. The City Clerk's Office did not acknowledge the significant public interest in allegations of improper parking exception practices in the 45th Ward or provide facts or legal arguments from which this office could conclude that the privacy interests in the names are so substantial that they outweigh the public interest in disclosure.

Under the fourth and final factor of the balancing test, the City Clerk's Office argued:

[T]here is an alternative means available for Mr. Czosnyka to obtain the information. He has received the actual amount of Alderman exceptions, the zones where the exceptions were provided and essentially has a baseline of vital information. The *“E-mail from Pete Czosnyka to Joshua Jones, Deputy Bureau Chief, Public Access Bureau (June release of residents' names raises the issue of intent and his own personal gains.!?6 Although the City Clerk's Office demonstrated that Mr. Czosnyka has reccived certain information about aldermanic parking exceptions in the 45th Ward, it did not show that he has an alternative means of obtaining copies of the letters of exception showing the names or otherwise ascertaining the names of the parking exception recipients.

Weighing the four factors together, for the reasons explained above, the City Clerk's Office did not sustain its burden of proving by clear and convincing evidence that the subjects’ names are exempt from disclosure under section 7(1)(c) of 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 Saturday, March 27, 2021, Mr. Peter Czosnyka submitted a FOIA request to the Office of the City Clerk of the City of Chicago via e-mail seeking copies of letters granting exceptions to residential parking permit requirements in the 45th Ward from May 20, 2019, through March 30, 2021, showing the subjects' names. The request was received by the City Clerk's Office when business hours resumed on Monday, March 29, 2021.

2) On April 5, 2021, the City Clerk's Office properly extended its time to respond by five business days pursuant to sections 3(e)(v) and 3(c)(vii) of FOIA.

3) On April 12, 2021, the City Clerk's Office responded by providing Mr.

Czosnyka with copies of responsive exception letters, but redacted the subjects’ names, home — addresses, vehicle makes/models, and license plate numbers pursuant to sections 7(1)(b) and 7(1)(c) of FOIA.

4) Mr. Czosnyka submitted a Request for Review contesting the City Clerk's Office's redaction of the subjects' names in a correspondence dated May 4, 2021, and postmarked May 5, 2021. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)).

*6Letter from Ennedy D. Rivera, Chief Legal Council, Office of the City Clerk, to Joshua Jones, 5) On May 12, 2021, the Public Access Bureau sent the City Clerk's Office a copy of the Request for Review. The Public Access Bureau also sent the City Clerk's Office a letter seeking unredacted copies of the responsive records for this office's confidential review, and a detailed explanation of the legal and factual bases for the applicability of sections 7(1)(b)

and 7(1)(c) to the subjects' names.

6) On May 28, 2021, this office received the requested materials from the City Clerk's Office. The City Clerk's Office maintained that it properly redacted the subjects' names.

7) On June 1, 2021, the Public Access Bureau forwarded to Mr. Czosnyka a copy of the City Clerk's Office's answer and notified him of his opportunity to reply. He submitted a reply later on that same date.

8) On June 11, 2021, the Public Access Burcau extended the time within which to issue a binding opinion by 30 business days, to July 27, 2021. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter.

9) Section 7(1)(b) of FOIA exempts from disclosure "private information," which the Act defines as "unique identifiers," with a non-exhaustive list of examples. Names are absent from the statutory definition and do not fall within the scope of the section 7(1)(b) exemption in circumstances such as this, where revealing the names alone would not reveal "private information" under the definition of that term in FOIA.

10) Section 7(1)(c) of FOIA exempts from disclosure "{p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Section 7(1)(c) 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 City Clerk's Office did not demonstrate that the names of residents who were granted letters of exception to parking permit requirements are highly personal or objectionable to a reasonable person to disclose. Further, there is a legitimate public interest in disclosure that outweighs any privacy interests in light of news media reports on an alleged retaliatory denial of a letter of exception in the 45th Ward.

Therefore, it is the opinion of the Attorney General that the Office of the City Clerk of the City of Chicago violated the requirements of FOIA by improperly denying the disclosure of residents’ names who received parking exceptions in response to Mr. Czosnyka's Freedom of Information Act request. Accordingly, the City Clerk's Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Czosnyka with new copies of the letters of exception responsive to his March 27, 2021, FOIA request, without redacting the subjects' names.

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 or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Peter Czosnyka as defendants. See 5 ILCS 140/11.5 (West 2020).

Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

By:

Brent D. Stratton Chief Deputy Attorney General Sarah L. Pratt, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 21-007) upon:

Mr. Peter Czosnyka 5745 North Menard Avenue Chicago, Illinois 60646 [email protected] Ms. Ennedy D. Rivera Chief Legal Counsel Office of the City Clerk, City of Chicago 121 North LaSalle Street, Room 107 Chicago, Illinois 60602 [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 Sprinfield, Illinois on July 27, 2021.

net ~~ Bratt SARAH L. PRATT Public Access Counselor SARAH L. PRATT Public Access Counselor