Section 7.5(zz) of FOIA Exempts from Disclosure Information Identifying City Employees in Bargaining Unit Positions Represented By a Particular Union

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Dear Ms. Volz and Ms. Paul:

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 City of Berwyn (City) did not violate the requirements of FOIA by denying Ms. Erin Volz's FOIA request seeking the identities and contact information of the City employees who work in bargaining unit positions represented by Service Employees International Union (SEIU) Local 73.

BACKGROUND

On January 17, 2022, Ms. Volz, a Policy & Outreach Associate for the Freedom Foundation (Foundation), submitted a FOIA request to the City seeking "the following information for each City of Berwyn employee covered by the collective bargaining agreement with SEIU Local 73:"

1) First name 2) Middle name 3) Last name 4) Job title 5) Hire date 6) Department name 7) Work address 8) Work email address 9) Union!!!

On January 25, 2022, the City extended its time to respond by five business days pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2020)).? On January 31, 2022, the City denied the request under section 7.5(zz) of FOIA,’ which exempts from disclosure "[i]nformation prohibited from being disclosed under the Illinois Public Labor Relations Act."* The City asserted that sections 6(c-5), 10(a)(8), and 10(a)(9) of the Illinois Public Labor Relations Act (IPLRA)> prohibit disclosure of the responsive information. In particular, the City asserted that section 6(c-5) of the IPLRA:

prohibits the City of Berwyn from providing any information personally identifying employee membership or membership status in a labor organization or other voluntary association affiliated with a labor organization or a labor federation (including whether employees are members of such organization, the identity of such organization, whether or not employees pay or authorize the payment of any dues or moneys to such organization, and the amounts of such dues or moneys).!° In an e-mail on April 1, 2022, Ms. Volz submitted a Request for Review to the Public Access Counselor contesting the denial.’ She argued that section 6(c-5) of the IPLRA does not apply, claiming that her request did not seek the items covered by that provision. According to Ms. Volz:

The Foundation did not seek information regarding membership status, dues payments, or any other indication of these employees' membership status with the state-appointed union beyond whether they work in a union-represented position. Identifying which employees are in a particular bargaining unit does not indicate whether they are union members.!*!

On April 7, 2022, the Public Access Bureau sent a copy of the Request for Review to the City, along with a letter requesting a detailed explanation of its legal and factual bases for denying Ms. Volz's request.’ This office asked the City to explain in its response the extent to penieh City employees are covered by a collective bargaining agreement with SEIU Local 73.!

SLetter from Margaret Paul, City Clerk/FOIA Officer, City of Berwyn, to Erin Volz, Freedom On April 25, 2022, the City provided via-email!! two versions of its answer in undated letters maintaining that its denial was proper: a complete version for this office's confidential review, and a redacted version for forwarding to Ms. Volz.'? On that same date, this office forwarded a copy of the City's redacted answer to Ms. Volz and notified her of her opportunity to reply to that answer.'? On May 12, 2022, Ms. Volz submitted the Foundation's reply.'4 On May 18, 2022, this office extended the time within which to issue a binding opinion by 30 business days, to July 14, 2022, 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).

Section 6(c-5) of the IPLRA provides, in relevant part:

No employer shall disclose the following information of any employee: (1) the employee's home address (including ZIP code and county); (2) the employee's date of birth; (3) the employee's home and personal phone number; (4) the employee's personal email address; (5) any information personally identifying employee membership or membership status in a labor organization or other voluntary association affiliated with a labor organization or a labor federation (including whether employees are members of such organization, the identity of such organization, whether or not employees pay or authorize the payment of any dues or moneys to such organization, and the amounts of such dues or moneys); and (6) emails or other communications between a labor organization and its members.

* OK OK If an employer discloses information in violation of this subsection (c-5), an aggrieved employee of the employer or his or her exclusive bargaining representative may file an unfair labor practice charge with the Illinois Labor Relations Board pursuant to Section 10 of this Act or commence an action in the circuit court to enforce the provisions of this Act, including actions to compel compliance, if an employer willfully and wantonly discloses information in violation of this subsection. * * * This subsection does not apply to disclosures (i) required under the Freedom of Information Act,!!® (ii) for purposes of conducting public operations or business, or (iii) to the exclusive representative. (Emphasis added.)

In contrast, section 6(c) of the IPLRA!” specifies that a public body shall provide the applicable labor organization with its employees' names, addresses, and other contact information for collective bargaining representation purposes. An employee's ability to bring an unfair labor practice charge before the Illinois Labor Relations Board or file suit in circuit court against an employer for disclosing employee information in violation of section 6(c-5) underscores the mandatory nature of the provision.

In the City's non-confidential answer in this matter, City Clerk and FOIA Officer Margaret Paul stated that the City's denial of Ms. Volz's request was predicated "on the City of Berwyn's clear duties toward the protection of public employees' right to organize established by the Illinois General Assembly under" sections 6(c-5), 10(a)(8), and 10(a)(9)'* of the IPLRA.!? The City contended that it "would explicitly be in violation of" section 6(c-5) of the IPLRA if it were to comply with the request, because disclosure of the requested information would entail identifying both the employees who have chosen to become members of a labor organization and that organization.”” The City claimed:

By providing Job Titles, Hire Dates, Department Names and Work Addresses of any employee covered under a specifically named union, the requestor confirms that such a union has members working at the municipality. * * * Moreover, while the names of members belonging to a particular union is prohibited, providing the information of Job Titles, Hire Dates, Department Names and Work Addresses limited to a specific union gives the requestor back-door entry to determine the name of union members. The Freedom Foundation would be able to submit a second FOIA asking for the names of employees working in particular categories of jobs, working in particular departments, hired at particular times, or working at particular locations so as to target those employees as probable union members[.] (Emphasis in original. )?@"]

The City also explained that providing the responsive work e-mail addresses would identify the employees because their e-mail addresses contain their names.”

Ms. Volz replied to the City's response by arguing that the Foundation "did not request any information that would disclose a public employees' relationship to their union[,]" because it "sought their bargaining unit, not their membership status in the union."”* Citing the United States Supreme Court's decision in Janus v. American Federation of State, County, & Municipal Employees, Council 31, __ U.S. __, 138 S. Ct. 2448 (2018), Ms. Volz noted that:

Being a member of a union is not necessary for public employment, yet in certain positions, the position itself requires the employee to be in a specified bargaining unit. While a bargaining unit is necessarily represented by a labor union, it is not necessary for an employee who is a member of the bargaining unit to be a separate, dues paying member of the labor union.!4!

Thus, Ms. Volz stated, "[i]dentifying which employees are in a particular bargaining unit does not indicate whether they are union members."”> Notably, however, the ninth part of the Foundation's request specifically sought each employee's "unionf.]"”° In Janus, the Court issued a landmark decision concerning the IPLRA. Under a provision of that Act at the time, a public employee in a position represented by a bargaining unit was required to pay the union a fair share fee to cover the cost of the union's legally-obligated representation, even if the employee did not wish to become a union member (by paying full union dues). Janus, U.S. __, 138 S. Ct. at 2460. The Court held that "States and public- sector unions may no longer extract agency fees from nonconsenting employees|,]" striking down the provision of the IPLRA that authorized automatic deductions of fair share fees from non-union members' wages. Janus, _ U.S. ___, 138 S. Ct. at 2486.

In response to the Janus decision, the General Assembly passed legislation to affirm and facilitate the exercise of collective bargaining rights by, among other things, adding sections 6(c-5), 10(a)(8), and 10(a)(9) to the IPLRA.”’ During legislative debate, a House sponsor of the bill (which as Public Act 101-620, effective December 20, 2019, enacted these provisions) explained:

This is what I would call the post-Janus piece of legislation. It is a response to the U.S. Supreme Court's 2018 ruling in the Janus case, which overturned 40 years of settled collective bargaining law. Basically, the provisions of this Bill can be divided into 3 categories. Number 1, it protects employees' personal information and would prohibit the disclosure to third parties of personal information regarding employees. Remarks of Rep. Hoffman, October 29, 2019, House Debate on Senate Bill No. 1784, at 16- 17.

Representative Hoffman further explained that "basically, [the Bill] ensures that the privacy of employees is paramount." Remarks of Rep. Hoffman, October 29, 2019, House Debate on ~ Senate Bill No. 1784, at 21. Moreover, Representative Hoffman stated that "regarding to disclosure under things like the Freedom of Information Act," the bill "would prohibit this sensitive employee information from being disclosed so that it could... it would not allow organizations to send certain things to the employees and it would protect the safety of the employees." Remarks of Rep. Hoffman, October 29, 2019, House Debate on Senate Bill No.

1784, at 27-28.

The Foundation's FOIA request asked the City for information concerning all the employees in bargaining unit positions represented by SEIU Local 73. Section 6(c-5) of the IPLRA”® expressly applies not just to "any information personally identifying employee membership" but to "membership status" as well. (Emphasis added.) "Membership status" must be construed to mean something broader than "membership" to avoid rendering the term meaningless or superfluous. See, e.g., In re Appointment of Special Prosecutor, 2019 IL 122949, 423, 129 N.E.3d 1181, 1188 (2019) ("Each word, clause, and sentence of a statute must be given a reasonable meaning, if possible, and should not be rendered superfluous."). The membership and membership status information that is prohibited from being disclosed by section 6(c-5) of the IPRLA includes even "the identity of such organization[.]" Although a public body's staff roster, employee business addresses, and addresses for public body-issued e-mail accounts generally do not fall within the scope of a FOIA exemption, the Foundation's FOIA request expressly concerns only employees covered by the City's collective bargaining agreement with SEIU Local 73. Confirming that certain specific City employees are within a bargaining unit represented by SEIU Local 73 would necessarily reveal the identity of the organization and information concerning employee membership or membership status; the Foundation would be informed that only these City employees are either members of the union or eligible to be members of the union, and that a majority voted to be represented by the union.

Moreover, the ninth part of the Foundation's request to the City also sought each employee's "union[.]"?? Complying with that part of the request would require the City to indicate whether or not each employee is a member of SEIU Local 73. And even if not all the employees whose information is responsive to the Foundation's FOIA request are union members, compliance with the request would require the City to disclose the full names, job titles, hire dates, department names, and direct contact information of numerous City employees within bargaining unit positions represented by SEIU Local 73. The legislative history behind section 6(c-5) as quoted above demonstrates that the provision was intended to insulate employees from third party communications concerning their union membership status. It would defeat the purpose of the General Assembly's post-Janus legislation to conclude that the City must furnish the specific employee information requested here, which would include identifying the union that represents the bargaining unit for those identified employees. See County of Du Page v. Illinois Labor Relations Board, 231 Ill. 2d 593, 604, 900 N.E.2d 1095, 1101 (2008) ("In addition to the statutory language, [a reviewing body] may consider the purpose behind the law and the evils sought to be remedied, as well as the consequences that would result from construing the law one way or the other."). Therefore, the City has proven by clear and convincing evidence that the requested record is exempt from disclosure pursuant to section 7.5(zz) of FOIA.*° Letter from Erin Volz, Policy & Outreach Associate, Freedom Foundation, to City of Berwyn, Margaret M. Paul, City Clerk (January 17, 2022).

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 17, 2022, Ms. Erin Volz, a Policy & Outreach Associate for the Freedom Foundation, submitted a FOIA request to the City of Berwyn seeking certain identifying information for each City employee in a position covered by the collective bargaining agreement with SEIU Local 73, including their full names and work contact information and their "union[.]"

2) On January 31, 2022, the City denied the request under section 7.5(zz) of FOIA, citing sections 6(c-5), 10(a)(8), and 10(a)(9) of the Illinois Public Labor Relations Act.

3) In an e-mail on April 1, 2022, Ms. Volz submitted a Request for Review contesting the denial. 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)).

4) On April 7, 2022, the Public Access Bureau sent a copy of the Request for Review to the City and requested a detailed explanation of its legal and factual bases for denying Ms. Volz's request.

5) On April 25, 2022, the City provided two versions of its answer, in which it maintained that its denial was proper: a complete version for this office's confidential review, and a redacted version for forwarding to Ms. Volz.

6) On that same date, this office forwarded a copy of the City's non-confidential answer to Ms. Volz and notified her of the Freedom Foundation's opportunity to reply. On May 12, 2022, Ms. Volz submitted a reply.

7) On May 18, 2022, this office extended the time within which to issue a binding opinion by 30 business days, to July 14, 2022, pursuant to section 9.5(f) of FOIA. Therefore, the Attorney General may properly issue a binding opinion with respect to this matter.

8) Section 7.5(zz) of FOIA exempts from disclosure "[i]nformation prohibited from being disclosed under the Illinois Public Labor Relations Act."

9) Section 6(c-5) of the IPLRA prohibits a public body from disclosing certain employee information, including "any information personally identifying employee membership or membership status in a labor organization or other voluntary association affiliated with a labor organization or a labor federation (including whether employees are members of such organization, the identity of such organization, whether or not employees pay or authorize the payment of any dues or moneys to such organization, and the amounts of such dues or moneys)."

10) Compliance with the Freedom Foundation's request would require the City to disclose personally identifying employee membership or membership status in a labor organization and the identity of such organization, as it would reveal which specific employees are either members of SEIU Local 73 or eligible to join the union as part of the bargaining unit. Further, the ninth part of the request specifically sought each employee's "union[.]" Section 6(c- 5) was intended to insulate employees from third party communications concerning their union membership status.

11) The City sustained its burden of proving by clear and convincing evidence that the responsive record is exempt from disclosure under section 7.5(zz).

Therefore, it is the opinion of the Attorney General that the City of Berwyn did not violate the requirements of FOIA by denying Ms. Erin Volz's and the Freedom Foundation's Freedom of Information Act 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 or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and City of Berwyn as defendants. See 5 ILCS 140/11.5 (West 2020).

Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

‘ Brent D. Stratton Chief Deputy Attorney General served a copy of the foregoing Binding Opinion (Public Access Opinion 22-009) upon:

Ms. Erin Volz Policy & Outreach Associate Freedom Foundation P.O. Box 352 Olympia, Washington 98507 [email protected] The Honorable Margaret Paul City Clerk/FOIA Officer City of Berwyn 6700 West 26th Street Berwyn, Illinois 60402 [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 Chicago, Illinois on June 30, 2022.

STEVE SILVERMAN Bureau Chief STEVE SILVERMAN Bureau Chief Public Access Bureau Office of the Attorney General 100 West Randolph Street, 11th Floor Chicago, Illinois 60601 (312) 814-6756