E-mail from Police Chief to Staff Concerning Policies, Procedure, and Employee Conduct is a Public Record That is Not Exempt From Disclosure Under Sections 7(1)(¢) or 7(1)(f) of FOIA

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Dear Mr. Mayer and Ms. Agoranos:

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 Village of Mount Prospéct (Village) violated the requirements of FOIA by improperly denying a FOJA request submitted by Mr. Richard Mayer.

BACKGROUND

On January 3, 2022, Mr. Mayer, on behalf of Journal & Topics Media Group, nl of "the e-mail * * * that John Koziol sent to all employees Friday."’ The request concerned an e- mail that Mr. Koziol sent on his last day of employment as the Village's police chief using his Police Department e-mail account. On January 4, 2022, the Village's Freedom of Information Officer denied the request pursuant to section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, effective August 20, 2021), stating that the e-mail "is very personal; the Chief's last heartfelt message to his team upon his retirement."? Later that same day, the Village issued an amended response and disclosed a copy of the e-mail at issue but redacted most portions under section 7(1)(c).?

On January 14, 2022, Mr. Mayer submitted to the Public Access Bureau a copy of the Village's amended response and a Request for Review disputing the redactions; he stated that Journal & Topics Media Group was told that the "'goodbye’ e-mail" Mr. Koziol sent to Police Department employees "contains information about the police department."* On January 21, 2022, Mr. Mayer completed his submission by forwarding to this office copies of the January 3, 2022, FOIA request,° and the Village's January 4, 2022, initial response.® On January 26, 2022, the Public Access Bureau sent a copy of the Request for Review to the Village. The Public Access Bureau also sent the Village a letter requesting an unredacted copy of the e-mail in question for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the section 7(1)(c)

‘E-mail from Richard Mayer, Associate Editor, Journal & Topics Media Group, to Greg (Sill, Village of Mount Prospect Police Department] (January 3, 2022).

exemption to the redacted portions.’ On February 11, 2022, counsel for the Village furnished’an unredacted copy of the e-mail, an unredacted written explanation, and another version of the written explanation from which it redacted the information it provided to this office confidentially pursuant to section 9.5(d) of FOIA (5 ILCS 140/9.5(d) (West 2020)).8 On February 14, 2022, this office sent Mr. Mayer a copy of the Village's redacted response.’ On February 21, 2022, Mr. Mayer e-mailed this office a reply from Mr. Todd Wessell, the Editor and Publisher of Journal & Topics Media Group.'°

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 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).

In addition to reiterating that the redacted portions of the e-mail are exempt from _ disclosure under section 7(1)(c), the Village's response to this office asserted that the e-mail is not a public record subject to the requirements of FOJA. Alternatively, the Village contended that the redacted portions of the e-mail are exempt from disclosure under section 7(1)(f) of FOIA (5 ILCS 140/7(1)(£) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;

102-558, effective August 20, 2021). This office will consider each argument in turn.

Section 2(c) of FOIA Section 2(c) of FOIA (5 ILCS 140/2(c) (West 2020)) defines "public records" as:

all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.

In City of Champaign v. Madigan, 2013 IL App (4th) 120662, 931, 992 N.E.2d 629, 637 (2013), the Illinois Appellate Court examined the meaning of the term "public business" in the context of a FOIA request seeking communications sent and received by members of a public body during an open meeting. The court found that the term "public business" has a plain and ordinary meaning: "to qualify as a public record a communication must first pertain to business or community interests as opposed to private affairs." City of Champaign, 2013 IL App (4th)

120662, 931, 992 N.E.2d at 637 (quoting Merriam~Webster's Collegiate Dictionary 941 (10th ed. 2000)). Because the request was "limited to nonpersonal communications, i.e., communications pertaining to public business, sent and received during the time the city council was in session[,]"

the court held that the responsive communications were public records even though they were transmitted on the personal electronic devices of members of the public body. City of Champaign, 2013 IL App (4th) 120662, 43, 992 N.E.2d at 640.

The Village's response to this office acknowledged that the e-mail contains Mr. "Mr. Koziol's frank.opinions on Village policies and procedure[,]" but characterized it as a personal communication sent by Mr. Koziol on his final day as police chief when he "was barely a public employee[.]"!' The Village contended that the "email was a personal goodbye correspondence sent to colleagues and friends. It expressed his personal opinions and beliefs about leaving and his personal thoughts on his history with the Village. This is clearly his own private affairs."!* In support of its argument that the e-mail is not a public record, the Village cited an Arizona Supreme Court decision in which the Court concluded that the meaning of "public records" in that state's public records law'3 "does not encompass documents of a purely: private or personal nature. Instead, only those documents having a ‘substantial nexus' with a government agency's activities qualify as public records." Griffis v. Pinal County, 215 Ariz. 1, 410, 156 P.3d 418, 421 (Ariz. 2007) (quoting Salt River Pima-Maricopa Indian Community v. Rogers, 168 Ariz. 531, 541, 815 P.2d 900, 910 (Ariz. 1991)). Additionally, the Village cited a Wisconsin Supreme Court decision in which the Court held that e-mails of public school teachers which "have no connection to a government function" do not meet the definition of a "record" subject to the requirements of Wisconsin's Public Records Law.'* Schill v. Wisconsin Rapids School District, 2010 WI 86, (23, 327 Wis. 2d 572, 587, 786 N.W.2d 177, 185 (Wis. 2010). The Village also cited remarks by an Illinois State Senator during legislative debate on a bill she sponsored to amend section 11 of the Personnel Record Review Act!> to prohibit disclosure of public employees' performance evaluations, in which the Senator indicated that the legislation was intended to protect public employees from ridicule.'® In his reply, Mr. Wessell stated that while Journal & Topics Media Group did not dispute that "public employees are legally allowed to send quick messages on non-governmental matters, like a wife asking her husband to bring home a gallon of milk," it did "believe very strongly that a police chief allegedly commenting on probable highly-charged matters related to his job and the operation of the community he swore to serve is" germane to public business.!”

The legislative history cited in the Village's response to this office has no relevance to this matter because the e-mail at issue is not a performance evaluation. The e-mail also is readily distinguishable from the cases the Village cited because it concerns public business rather than private affairs. The records in Schill included messages about family and social matters such "as an e-mail from a teacher to her spouse about child care responsibilities and an email from a friend to a teacher regarding social plans." Schill, 2010 WI 86, 429, 327 Wis. 2d at 590, 786 N.W.2d at 187. It was "uncontested that the Teachers' personal e-mails at issue were not prepared for work-related purposes. It is also uncontested that the contents of the e-mails at issue do not relate to the school district or government affairs or any official actions of the Teachers or other public officers or employees or the conduct of governmental business." Schill, 2010 WI 86, 930, 327 Wis. 2d at 590, 786 N.W.2d at 187. Similarly, the issue considered in Griffis was whether "e-mails generated or maintained on a government-owned computer system are automatically public records." Griffis, 215 Ariz. at 12, 914, 156 P.3d at 422. As was the case in City of Champaign, the court explained that e-mails that "relate solely to personal matters" are not public records, unlike records that’ 'relate to government business." Griffis, 215 Ariz. at 12, 914, 156 P.3d at 422.

The e-mail at issue in this matter does not concern private affairs such as child care responsibilities or social plans. The e-mail directly comments on Police Department policies and procedure and the conduct of Village police officers and other employeés. Mr. Koziol prepared the e-mail for a work-related purpose and it directly relates to his public duties and the public duties of the employees who received the e-mail. Although the e-mail does _ express Mr. Koziol's personal opinions and beliefs, those opinions and beliefs concern Police Department policy and operation. That is the very type of record the General Assembly intended FOIA to address. See 5 ILCS 140/1 (West 2020) (declaring it "to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act."). The proximity of the e-mail to Mr. Koziol's retirement is of no consequence. It is undisputed that he was employed as the Village's police chief when he sent the e-mail to Village employees in the Police Department. Because the e-mail was prepared by a Village employee using his Police Department e-mail account and is in the possession of the Village, and because it pertains to the transaction of public business rather than private affairs, it is a public record subject to the requirements of FOIA.'® Section 7(1)(c) of FOTIA 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 further provides: "The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy."

The Village's explanation for the applicability of the section 7(1)(c) exemption asserted that "a goodbye email from a retiring [police] chief on the eve of his retirement does not pertain to public duties."'? The Village further argued that the e-mail contains highly personal thoughts and feelings for which there is no public interest in disclosure because the police chief retired and "has no sway or impact on policies at this point."?° As discussed above, the e-mail was not written by a private citizen and it does not concern private affairs. Mr. Koziol prepared and transmitted the e-mail while he was employed by the Village, and the message comments on Police Department policies and procedure and the conduct of police officers and other public employees. Such an e-mail unequivocally bears on the public duties of the police chief and other employees. Because the scope of the section - 7(1)(c) exemption expressly excludes information that bears on the public duties of public employees, it is unnecessary to weigh Mr. Koziol's right to privacy against the public interest in disclosure of the e-mail. Accordingly, this office concludes that the Village improperly redacted the e-mail under section 7(1)(c) of FOIA.

Section 7(1)(f) of FOIA Section 7(1)(f) of FOIA exempts from disclosure "[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body." The Village's response to this office contended that:

The plain language of Section 7(1)(f) does not require an opinion to relate to the formulation of a policy. This language is distinctly different than the Federal FOIA exemption * * * language, 2! which does not mention opinions at all. As such, Mr. Koziol's frank opinions on Village policies and procedure are exempt under FOIA.)

The Village's argument is contrary to court decisions that have consistently - construed the section 7(1)(f) exemption as limited to communications exchanged in the process of deliberating about potential decisions. It is appropriate to consider interpretations of Federal FOIA when analyzing exemptions in the State statute because of the laws' similarities. State Journal-Register v. University of Illinois-Springfield, 2013 IL App (4th) 120881, 421, 994 N.E.2d 705, 712 (2013). In Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003), the Illinois Appellate Court explained that section 7(1)(f) of the Act "is the equivalent of the ‘deliberative process’ exemption found in section 552(b)(5) of the federal Freedom of Information Act[.]" Section 7(1)(f) "protects the opinions that public officials form while creating government policy." Kalven v City of Chicago, 2014 IL App (Ist) 121846, 24, 7 N.E.3d 741, 747-48 (2013), rev'd on other grounds by Perry v. Dep't of Financial and Professional Regulation, 2018 IL 123349, 106 N.E.3d 1016 (2018). "[I]t is well settled that ‘(o]nly those portions of a predecisional document that reflect the give and take of the deliberative process may be withheld." Kalven, 2014 IL App (lst) 121846, 424, 7 N.E.3d at 748 (quoting Public Citizen, Inc.,v. Office of Management & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010)); see also Chicago Tribune Co. v. Cook County Assessor's Office, 2018 IL App (ist)

170455, 928, 109 N.E.3d 872, 880 (2018) ("In order to qualify for the deliberative process exemption, a document must be both predecisional in the sense that it is actually antecedent to the adoption of an agency policy, and deliberative in the sense that it is actually related to the process by which policies are formulated." (Emphasis added.)).

Thus, section 7(1)(f) does not exempt from disclosure all opinions expressed by public officials or employees regardless of the context. The exemption encompasses only predecisional opinions that are exchanged as part of a public body's process of formulating action.

Despite arguing earlier in its response that Mr. Koziol "has no sway or impact on policies at this point[,]"”’ the Village alternatively asserted that section 7(1)(f) is applicable to his e-mail because Village employees "could use this email to further current preliminary policy decisions and discussions all of which are still ongoing[.]"’* The Village provided additional information about this claim confidentially. However, the response did not provide clear and convincing evidence that the e-mail was sent in connection with the Village or its Police Department deliberating on policy decisions and discussions. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980) (a public body that asserts the deliberative process exemption "has the burden of establishing what deliberative process is-involved, and the role played by the documents in issue in the course of that process."). Accordingly, the Village has not sustained its burden of demonstrating that the e-mail is exempt from disclosure under section 7(1)(f) 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 January 3, 2022, Mr. Richard Mayer, on behalf of Journal & Topics Media Group, submitted a FOJA request to the Village of Mount Prospect Police Department seeking a copy of an e-mail that Mr. John Koziol sent to employees on the previous Friday. Mr. Koziol sent the e-mail during his final day of employment before retiring as the Village's Police Chief.

2) On January 4, 2022, the Village's Freedom of Information Officer denied the request in its entirety, citing section 7(1)(c) of FOIA. Later that day, the Village issued an amended response and disclosed a copy of the responsive e-mail but redacted most portions under section 7(1)(c). . , . 3) On January 14, 2022, Mr. Mayer submitted to the Public Access Bureau a copy of the Village's amended response and a written Request for Review disputing the redactions. On January 21, 2022, Mr. Mayer completed his submission by providing this office with a copy of his FOJA request and the Village's initial response. 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)). Accordingly, the Attorney General may issue a binding opinion with. respect to this matter.

4) On January 26, 2022, the Public Access Bureau sent a copy of the Request for Review to the Village. The Public Access Bureau also sent the Village a letter requesting an unredacted copy of the e-mail in question for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the section 7(1)(c) exemption to the redacted portions.

5) On February 11, 2022, counsel for the Village sent this office a copy of the e- mail, an unredacted written response for the Public Access Bureau's review, and a copy of the response with confidential information redacted.

6) On February 14, 2022, the Public Access Bureau forwarded a copy of the redacted response to Mr. Mayer and notified him of the opportunity to reply. On February 21, 2022, Mr. Mayer provided this office with a written reply from Mr. Todd Wessell, Editor & Publisher of Journal & Topics Media Group.

7) Section 2(c) of FOIA defines "public records" as "all records * * * pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body." Public records are records that pertain to community or business interests rather than private affairs.

_ 8) The e-mail at issue is in the possession of the Village and it was prepared by Mr. Koziol during his employment as the Village's Police Chief. The e-mail addresses Police Department policies and procedure and the conduct of Police Department employees. These topics pertain to the transaction of public business. Therefore, the e-mail is a public record subject to the requirements of FOIA.

9) 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." The exemption expressly provides: "The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy."

10) The e-mail at issue, which Mr. Koziol prepared and transmitted while employed as the Village's police chief, addresses Police Department policies and procedure and the conduct of Village police officers. The content of the e-mail unequivocally bears on Mr. Koziol's and staff members’ public duties. Therefore, disclosure would not constitute an unwarranted invasion of personal privacy under section 7(1)(c) of FOIA.

11) 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." This exemption permits public bodies to withhold portions of predecisional communications that reflect the give and take of deliberations in the process of formulating decisions.

12) The Village has neither demonstrated that the opinions in the e-mail were prepared by Mr. Koziol in connection with a deliberative process, nor established any role that the e-mail played in such a process. Accordingly, the Village has not demonstrated that the e- mail is exempt from disclosure pursuant to section 7(1)(f) of FOIA.

- Therefore, it is the opinion of the Attorney General that the Village of Mount Prospect violated the requirements of FOIA by improperly redacting the e-mail responsive to Mr. Richard Mayer's January 3, 2022, Freedom of Information Act request. Accordingly, the Village is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Mayer with an unredacted copy of the e-mail responsive to the FOIA request, ‘except for the permissible redaction of Mr. Koziol's personal phone number and personal e-mail address as "private information" under section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, effective August 20, 2021).

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, Mr. Richard Mayer, and Journal & Topics Media Group as defendants. See 5 ILCS 140/11.5 (West 2020).

Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

By: nap at __ Brent D. Stratton ’ Chief Deputy Attorney General cc: Ms. Mallory A. Milluzzi_. Klein, Thorpe & Jenkins, Ltd.

20 North Wacker Drive, Suite 1660 Chicago, Illinois 60606-2903 5Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines “private information" as "unique identifiers, including * * * home or personal telephone numbers[.]"

served a copy of the foregoing Bindirig Opinion (Public Access Opinion 22-004) upon:

Mr. Richard Mayer Associate Editor ~ Journal & Topics Media Group 622 Graceland Avenue Des Plaines, Illinois 60016 [email protected] The Honorable-Karen M. Agoranos Village Clerk/Freedom of Information Officer Village of Mount Prospect 50 South Emerson Street Mount Prospect, Illinois 60056 [email protected] Ms. Mallory A. Milluzzi — Klein, Thorpe & Jenkins, Ltd.