Basis for Withholding Letter from Current and Former Employees of One Public Body Asking Oversight Agency to Hold Vote ofNo Confidence

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to Hold Vote of No Con>dence

Ms. Donna M. Dowd Chicago Metro Counsel Police Benevolent & Protective Association - Labor Committee 1616 West Pershing Road Chicago, Illinois 60609 Mr. Charles Isaacs Assistant Director Community Commission for Public Safety and Accountability City of Chicago 2 North LaSalle Street, Suite 1600 Chicago, Illinois 60602 Dear Ms. Dowd and Mr. Isaacs:

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 2023 Supp.)). For the reasons discussed below, this oDce concludes that the City of Chicago (City) Community Commission for Public Safety and Accountability (Commission) violated the requirements of FOIA by improperly denying a FOIA request submitted by Donna M. Dowd.

BACKGROUND

On September 5, 2024, Ms. Dowd, as the Chicago Metro Counsel for the Police Benevolent & Protective Association - Labor Committee, submitted a FOIA request to the The record listed in your request is part of the Commission's current work to perform its obligations under the Municipal Code of Chicago to exercise oversight over COPA, which includes evaluating the performance of the Chief Administrator of COPA. The record is deliberative because it is part of the process for the Commission to reach decisions on >nal actions, and the record is pre-decisional, in that it was generated prior to the Commission's potential >nal actions.!*!

As to section 7(1)(m), the Commission contended that "the records represent materials compiled with respect to an audit. The Commission had this record compiled under the expectation of privacy and privilege."* The Commission also argued that the section 7(1)(n) exemption applies because "[u]nder the Municipal Code of Chicago, the Commission, a public body, is charged with oversight of the COPA and is therefore responsible for the review of complaints as it reviews the performance of the Chief Administrator of COPA."° On September 19, 2024, Ms. Dowd submitted a Request for Review contesting the Commission's denial.° On September 24, On September 30, 2024, the Public Access Bureau sent a copy of the Request for Review to the Commission. The Public Access Bureau also sent the Commission a letter requesting an unredacted copy of the withheld record for this oDce's con>dential review and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemptions.” On October 18, 2024, the Commission furnished those materials, including a complete version of its answer for this oDce's con>dential review!? and a redacted copy for forwarding to Ms. Dowd.'! The Commission maintained that it properly denied the request under sections 7(1)(f), 7(1)(m), and 7(1)(n), and additionally cited the exemptions in sections 7(1)(c), 7(1)(d)(iv), and 7(1)(d)(vi) of FOIA.'? On that same date, this oDce forwarded a copy of the Commission's answer to Ms. Dowd and noti>ed her of her opportunity to reply in writing.'? On October 24, 2024, she submitted a reply.'4 "Section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)) requires a signed Request for Review and copies of the FOIA request and any responses to the FOIA request to be submitted not later than 60 days after the date of the >nal denial of the request. Ms. Dowd's Request for Review did not include a copy of the FOIA request with her initial submission on September 19, 2024.

ANALYSIS

It is the public policy of the State of Illinois that "all persons are entitled to full and complete information regarding the aNairs of government." 5 ILCS 140/1 (West 2022). 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 2022). "The public body satis>es its burden when it provides a detailed justi>cation for the claimed exemption which addresses the speci>c documents requested and allows for adequate adversarial testing." Turner v. Joliet Police Department, 2019 IL App (3d)

170819, 4 10.

Background The Commission was created in July 2021, when "the Chicago City Council passed an ordinance to create a new model for police oversight, accountability, and public safety."'© The Commission has twelve enumerated purposes, including to "increase public safety[,]" to "increase transparency and public input into" Chicago Police Department (CPD) “operations, policies, and performance[,]" and to "increase public accountability of [CPD], COPA, and the Police Board."'? COPA is an independent City agency that investigates allegations of police misconduct.'® The Commission's oversight powers over COPA include appointing the Chief Administrator with the advice and consent of the City Council, assessing the performance of and setting goals for the Chief Administrator, and removing the Chief Administrator with the advice and consent of the City Council.!? The process for the Commission to seek removal of the Chief Administrator begins with the Commission's "passage by a two-thirds vote of a motion to take a no con>dence vote[.]"~° Earlier in 2024, the Commission began to receive information from multiple knowledgeable sources that raised serious concerns about the operation of COPA, speci>cally concerning the quality and integrity of COPA's investigations, the quality and integrity of COPA's disciplinary recommendations, and retaliation against COPA employees who have raised concerns about COPA's investigations and recommendations. In response, the Commission voted at a public meeting on July 15, 2024 to * * * recommend to the Public Safety Inspector [General] that the oDce conduct audits and any other investigations and reviews that the facts suggest may be warranted related to these concerns.

On August 30, 2024, the Chicago Sun Times reported that two high-ranking oDcials at COPA were abruptly >red, just days after one of them made a complaint to the ODce of the Inspector General (OIG). Days later, on September 5, the Sun Times reported that a group of former and current COPA employees signed a letter calling for the Commission to exercise its power to adopt a resolution of no con>dence in the Chief Administrator. That same day, the Commission received a FOIA request from Ms. Dowd for the letter described by the Sun Times. Shortly after, the former COPA employee who was terminated after making a complaint to the OIG >led a whistleblower lawsuit against the City of Chicago. [Footnotes omitted.]??!!

The Commission cited three Chicago Sun-Times articles in this passage.””

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, unless the disclosure is consented to in writing by the individual subjects of the information." Section 7(1)(c) de>nes "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." Section 7(1)(c) contains an exception, however, providing that "[t]he disclosure of information that bears on the public duties of public employees and oDcials shall not be considered an invasion of personal privacy."

The resolution of a personal privacy exemption claim requires weighing four factors: "(1) the [requester'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 (2010). The General Assembly's use of the language "clearly unwarranted invasion of personal privacy[ ]" evinces a "stricter standard to claim exemption" which the government agency possessing the records bears the burden of sustaining. (Emphasis in original.) Schessler v. Department of Conservation, 256 Ill. App. 3d 198, 202 (1994).

In the non-con>dential version of its answer, the Commission argued that the letter is exempt from disclosure under section 7(1)(c) because "[t]he letter lists the names of individuals whose privacy interests supersede any bene>ts to the public. In addition, the letter includes language that poses a high risk of revealing the individual identities of the authors."” The Commission cited two binding opinions issued by this oDce (Ill. Att'y Gen. Pub. Acc. Op. No. 18-018, issued December 31, 2018, and III. Att'y Gen. Pub. Acc. Op. No. 22-005, issued March 24, 2022) and Mays v. Drug Enforcement Administration, 234 F.3d 1324, 1327 (D.C. Cir. 2000), claiming that "these opinions also apply to witnesses and third parties described incidentally in the complaints."*4 According to the Commission, if the allegations in the letter are true, "then divulging so much identifying information would open the door to more retaliation, all while greatly undermining the Commission's careful review and assessment of the concerns conveyed."*> Addressing the fourth factor of the balancing test, the Commission argued:

letter, stated that twelve current and four former employees authored the letter, and revealed that the letter called for the Commission to consider a no con>dence resolution. The information published in this article suDces to alert the public to concerns regarding the COPA Chief's public duties while not providing speci>c. details that would harm the personal interests of the authors and third parties, and without undermining the Commission's work at the same time. The published article therefore meets the balance of interest between personal privacy and public awareness. The public is aware of the general nature of the letter; the speci>c contents should remain con>dential out of respect to the authors and third parties involved. [Footnote omitted, ]!?6! | The Commission also argued that disclosure "would send an immediate chilling eNect on anyone to ever contact the Commission in the future concerning events within COPA[,]" which "would result in a horrendous limitation on the Commission's ability to execute its own purposes of oversight and its statutory oversight responsibilities."7? The Commission contended that the "ful>llment of its most serious and sensitive responsibilities depends on its ability to handle incoming information with discretion."*® The Commission made additional arguments about section 7(1)(c) con>dentially.

Under the >rst factor of the balancing test, Ms. Dowd's Request for Review indicates that her interest in disclosure is her professional interest in representing the Labor Committee of the Police Benevolent & Protective Association. Ms. Dowd's personal interest thus appears to re]ect the broader interests of the labor organization.

Under the second factor of the balancing test, there is considerable public interest in information concerning allegations of impropriety against the Chief Administrator of COPA in Under the third factor of the balancing test, this oDce's review of the letter found that it does not bear the hallmarks of correspondence that is intended to be con>dential or highly sensitive. The letter concerns public duties and not private aNairs. In contrast to a complaint about a highly personal incident, such as sexual harassment, the letter does not detail incidents of a highly personal nature. The binding opinions the Commission cited are distinguishable because in those instances the complainants provided highly personal information about themselves, whereas here the complainants did not do so. Similarly, Mays involved the disparate circumstances of the right to privacy in Drug Enforcement Agency documents derived from a criminal investigation.”? Disclosing a person's name as a victim or witness in such criminal law enforcement records carries entirely diNerent considerations—such as unjusti>ably associating individuals with criminal activity or subjecting them to harassment—than disclosing the letter writers' names here. The only third parties referenced are public employees or oDcials. The current and former employees included their names and their current and former titles, and nowhere in the letter do the authors suggest they wish to keep their concerns out of the public eye. The Commission also did not demonstrate that disclosing the letter would have the type of chilling eNect on providing information to the Commission that is foreseeable in disparate circumstances where the person providing the information has more compelling privacy interests in their identifying information and the content of the allegations. F.g., Ill. Att'y Gen. Pub. Acc.

Op. No. 22-005, at 12-13 (recognizing public body's interest in protecting individuals who >led discrimination and sexual harassment complaints from retaliation and embarrassment and concluding that their identifying information as well as graphic and salacious details of the complaints were exempt from disclosure under section 7(1)(c)).

Under the fourth and >nal factor of the balancing test, the Commission accurately noted that certain information pertaining to the letter has been published in news media, making some details of the letter available by other means. Still, it is not evident that Ms. Dowd would be able to obtain the letter or most of the details therein by alternative means.

On balance, the signi>cant public interest in disclosure outweighs any personal privacy interests involved in the letter. Accordingly, the Commission did not prove by clear and convincing evidence that any person's right to privacy outweighs any legitimate public interest in obtaining the letter.

Sections 7(1)(d)(iv) and 7(1)(d)(vi) of FOIA Sections 7(1)(d)(iv) and 7(1)(d)(vi) of FOIA exempt from disclosure:

course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would:

* * OK (iv) unavoidably disclose the identity of a con>dential source, con>dential information furnished only by the con>dential source, or persons who >le complaints with or provide information to administrative, investigative, law enforcement, or penal agencies; [or]

* OK (vi) | endanger the life or physical safety of law enforcement personnel or any other person[.]

Section 7(1)(d)(iv) of FOIA generally allows police departments and other law enforcement agencies to protect the anonymity of persons who lodge complaints or otherwise provide them with information. See Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 200-01 (2004) (concluding that police department did not improperly redact names and addresses of individuals who attended beat meetings, which provided an opportunity for police and members of the community to meet and exchange information).

The Commission claimed that section 7(1)(d)(iv) applies to the letter by citing Kelly v. Village of Kenilworth, 2019 IL App (1st) 170780, and arguing that the case "established that public bodies other than law enforcement agencies can assert an exemption under Section 7(1)(d) of FOIA when the record is closely related to on-going law enforcement eNorts."°° The Commission asserted that it "has records closely related to law enforcement|,|" and argued that "(t]he review of the performance of the COPA Chief and the consideration of complaints by current and former employees are inextricably intertwined with law enforcement by the City of Chicago."*! The Commission argued that "[t]he City itself is a law enforcement agency, and the that while FOIA does not de>ne "law enforcement agency," other statutes "de>ne the City of Chicago, because it is a unit of local government with police powers, as a law enforcement agency."*? Speci>cally, the Commission referenced the de>nitions of "law enforcement agency" in the Illinois Trust Act, the Illinois Police Training Act, the Environmental Protection Act, and the Empowering Public Participation Act.** The Commission argued that "[t]o de>ne it otherwise is to con]ate ‘public body' with ‘law enforcement agency,’ and render 'law enforcement agency’ meaningless."*° Furthermore, the Commission argued that "the letter contains con>dential information and identi>es con>dential sources[.]"*° The primary objective when construing the meaning of a statute is to ascertain and give eNect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). "The most reliable indicator of legislative intent is the statutory language, given its plain and ordinary meaning." GaNney v. Board of Trustees of Orland Fire Protection District, 2012 IL 110012, 456. When a term is unde>ned in a statute, it is entirely appropriate to use a dictionary to help determine its meaning. Lacey v. Village of Palatine, 232 Ill. 2d 349, 363 (2009).

FOIA does not de>ne "law enforcement agency." "Law enforcement" is de>ned as "[t]he detection and punishment of violations of the law." Black's Law Dictionary 1058 (11th ed. 2019). The Commission's powers and duties do not include detecting and punishing violations of the law. See Chicago Municipal Code § 2-80-050(a) through (v) (last amended July the FOIA." Duncan Publishing, Inc. v. City of Chicago, 304 Ill. App. 3d 778, 784 (1999). Only a subsidiary body of the City that detects and punishes violations of the law, such as CPD, constitutes a "law enforcement agency" under the plain meaning of that term. It is immaterial that the Commission's records and functions relate to CPD.

Moreover, none of the de>nitions of "law enforcement agency" in the other statutes cited by the Commission suggests that the City is a law enforcement agency in and of itself within the meaning of section 7(1)(d)(iv). Those provisions generally pertain to municipal police departments, sheriN's oDces, and the Illinois Department of Corrections. Furthermore, other statutes de>ne "law enforcement agency" in ways that clearly exclude the City. See, e.g., section 10-10 of the Law Enforcement ODcer-Worn Body Camera Act (50 ILCS 706/10-10 (West 2023 Supp.) (""Law enforcement agency’ means all State agencies with law enforcement oDcers, county sheriN's oDces, municipal, special district, college, or unit of local government police departments.")).

Finally, Kelly is readily distinguishable from the present circumstances. The records in Kelly concerned FOIA requests seeking records from a village, the Illinois State Police, a State's Attorney's oDce, and a medical examiner's oDce concerning a joint investigation of a murder. Kelly, 2019 IL App (1st) 170780, 9§ 4-5. The court held that the village could "assert an exemption over the other defendants’ records in this case. Were it otherwise, law enforcement agencies would be discouraged from cooperating due to the risk of harmful disclosures and the people of Illinois would be denied eNective law enforcement." Kelly, 2019 IL App (1st) 170780, § 34. In contrast, the Commission does not possess the letter in question as part of its participation in a joint criminal investigation or criminal proceeding. Therefore, the Commission improperly denied the request under the section 7(1)(d)(iv) exemption.

Section 7(1)(d)(vi) is no more availing for the Commission. The Commission's argument for the applicability of the exemption is merely that "[m]aking the letter requested by Ms. Dowd public undermines the eNectiveness of law enforcement eNorts and jeopardizes the safety of law enforcement personnel and civilians who are victims of police abuse and misconduct.">” Such bare assertions do not satisfy a public body's burden of illustrating how an exemption applies to arecord. See Rockford Police Benevolent & Protective Ass'n v. Morrissey, 398 Ill. App. 3d 145, 151 (2010) (conclusory statements without a detailed rationale do not meet a public body's burden of proving records are exempt from disclosure under FOIA). This oDce Section 7(1)(f) of FOIA Section 7(1)(f) of FOIA exempts from inspection and copying "[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a speci>c record or relevant portion of a record shall not be exempt when the record is publicly cited and identi>ed by the head of the public body." The section 7(1)(f) exemption is equivalent in most respects to the "deliberative process" exemption found in section 552(b)(5) of the federal FOIA (5 U.S.C. § 552(b)(5) (2018)), which exempts from disclosure "inter- and intra-agency predecisional and deliberative material." Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (2003). The exemption is "intended to protect the communications process and encourage frank and open discussion among agency employees before a >nal decision is made." Harwood, 344 Ill. App. 3d at 248. The exemption, however, does not extend to communications between a public body and third parties with whom the public body is not engaged in a joint decision-making process. Harwood, 344 Ill. App. 3d at 248 (correspondence with third parties only intra-agency when third parties contracted to serve public body's interests in essentially same manner as employees of public body); see also Department of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 13 (2001)

(communications with third parties that have independent interests and that stand to bene>t from the public body's >nal decision cannot be characterized as intra-agency communications).

The Commission argued that the responsive record is exempt from disclosure under section 7(1)(f) because it is "a letter in which opinions are expressed or actions are formulated."** The Commission relied on the United States Supreme Court case cited above, Klamath, 532 U.S. at 9, for the proposition that "[s]uch documents are protected to promote 'the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.'"?? The Commission also cited an Illinois Appellate Court case, State Journal-Register v. University of Illinois Spring>eld, 2013 IL App (4th) 120881, 9§ 29-30. The Commission asserted:

The case involved the applicability of Section 7(1)(f) to a letter submitted by a student's legal representative to the University with a synopsis of the student's allegations and opinions regarding how the student wished to proceed. [Citation.] The Court determined * * * The record is a letter from current and former employees of another department of the City of Chicago, calling upon the Commission to exercise its power to hold a no con>dence vote on the Chief Administrator, and outlining opinions and rationale for why. The letter is exactly in line with the letter submitted to [the University] in State J-Reg. in terms of its placement in the deliberation process.!4?

The Commission further argued that the disclosure of the letter would mean that "[t]he Commission's deliberative process would be subject to such extreme outside pressures from uninvolved parties as to render an eNective review impossible."*! The Commission claimed that the letter "is a critical component of the Commission's deliberations[,]" and it "has yet to determine which action to take, making the matter predecisional."** The Commission redacted a few sentences of its explanation from the non-con>dential version of its answer.

In reply, Ms. Dowd argued that State Journal-Register is inapposite because:

The court found the students’ letter, with suggested ways to resolve the student's allegations, was a part of the University's deliberative process. The COPA letter asked the Commission to hold a vote of no con>dence and provided opinions on why the Commission should take this step. The deliberative process begins when the Commission begins the investigation into whether to issue the no- con>dence vote or not.!#3!

This oDce's review has con>rmed that the letter was not issued as part of a predecisional intra- or inter-agency deliberative process. Unlike the letter in State Journal- request from employees of a separate public body and third-party former employees. Although the COPA letter may have led to a deliberative process, there is no indication that the letter writers have any involvement in a joint decision-making process with the Commission. Disclosing the letter would not expose the contents of any Commission deliberations that had occurred.

Moreover, even if the COPA letter could be considered analogous to the letter in State Journal-Register, the reasoning of State Journal-Register about using a third-party communication in predecisional deliberations is at odds with Klamath as well as Harwood and other Illinois case law on the exemption. The court in State Journal-Register did not tie its conclusion about the letter to the plain language of the exemption or to any precedent. In Klamath, the Supreme Court concluded that the deliberative process privilege did not apply to documents submitted to the Department of the Interior by Native American tribes, even though public disclosure of the records would erode the candor of the communications between the parties, because the >rst condition of the privilege is that the communications must be "'intra- agency or inter-agency." Klamath, 532 U.S. at 12, 16. In Harwood, a report on which a public body relied in a predecisional deliberative process was exempt precisely because the public body commissioned the report to inform that process. Harwood, 344 Ill. App. 3d at 248. This seminal decision does not suggest that an unsolicited third party submission to a public body outside of a deliberative process could be swept into the scope of the exemption. The Illinois Appellate Court has likewise explained that "in order to be exempt under this provision, the responsive materials must be both (1) inter or intra agency and (2) predecisional and deliberative."

(Emphasis added.) Fisher v. ODce of the Illinois Attorney General, 2021 IL App (lst) 200225, 4 19; see also Ill. Att'y Gen. Pub, Acc. Op. No. 21-004, issued May 24, 2021 (Attorney General binding opinion concluding that communications between a private business owner applying for a zoning variance and a city were not inter- or intra-agency communications within the scope of section 7(1)(f)). In Chicago Tribune Co. v. Cook County Assessor's ODce, the court similarly advised that "[t]he government is entitled to withhold documents that re]ect the agency's give- and-take leading up to its >nal decisions." (Emphasis added.) Cook County Assessor's ODce, 2018 IL App (1st) 170455, 9] 29-30 (concluding data not exempt because disclosure would not reveal public body's predecisional deliberations). Because the disclosure of the COPA letter would not expose the give-and-take of any predecisional deliberative process of the Commission, it falls outside the scope of section 7(1)(f) of FOIA.

Section 7(1)(m) of FOIA Section 7(1)(m) of FOIA exempts from disclosure:

Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or the public body, and materials prepared or compiled with respect to internal audits of public bodies. (Emphasis added.)

As noted above, the primary objective in construing a statute is to eNectuate the intent of the legislature, and "[t]he best evidence of legislative intent is the language used in the statute itself, which must be given its plain, ordinary and popularly understood meaning." Nelson v. Kendall County, 2014 IL 116303, 4 23. An "internal audit" is de>ned as "[a]n audit performed by an organization's personnel to ensure that internal procedures, operations, and accounting practices are in proper order." Black's Law Dictionary 162 (11th ed. 2019).

The Commission argued that the letter is exempt from disclosure under section 7(1)(m) "because the record was compiled with respect to an audit."** Citing Rockford Police Benevolent & Protective Ass'n, 398 Ill. App. 3d at 150, the Commission argued that "[c]ase law has determined that while FOIA does not de>ne 'audit,' an audit may be described as a methodical examination and review."** The Commission asserted that it "is being thorough and methodical in its work."4° According to the Commission:

If a letter expressing critical concerns of the COPA Chief is shared with the public, including the Chief Administrator, it could severely limit the Commission's ability to hold a thorough audit of all materials, thereby preventing the Commission from carrying out its duties. Con>dentiality is essential to conducting the audit and is therefore essential to the Commission's ability to ful>ll its duties and obligations under the law.!47!

The Commission provided additional information about its assertion of section 7(1)(m)

con>dentially.

In reply, Ms. Dowd argued that Rockford does not support the Commission's position because although "[t]here is no doubt the Commission will be 'thorough and methodical It is apparent from this oDce's review of the letter and the surrounding circumstances that the letter does not constitute an internal audit or material prepared or compiled with respect to an internal audit. Plainly, the letter was issued independently of any audit the Commission conducted. The Commission may not transform such correspondence from third parties outside of the context of an audit into exempt audit material under section 7(1)(m) merely because the Commission may consider the letter when conducting an audit of COPA. In the Rockford case cited by the Commission, the court concluded that a survey used to assess a police department's performance was not an audit; nothing in the decision suggests that a unilateral letter sent to an oversight agency is exempt from disclosure as an internal audit record.’ Therefore, the Commission failed to sustain its burden of proving that the letter is exempt from disclosure under section 7(1)(m).

Section 7(1)(n) of FOIA Section 7(1)(n) of FOIA exempts from inspection and copying "[rJecords relating to a public body's adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the >nal outcome of cases in which discipline is imposed." (Emphasis added.) In Kalven v. City of Chicago, 2014 IL App (1st) 121846, § 13, the Illinois Appellate Court held that the scope of section 7(1)(n) is limited to "documents connected to formalized legal proceedings that involve only" employee grievances and disciplinary cases "and that result in a >nal and enforceable decision." The exemption does not encompass records of an underlying investigation that precedes an adjudication. Kalven, 2014 IL App (lst) 121846, 9§ 20, 22. Similarly, in Peoria Journal Star v. City of Peoria, 2016 IL App (3d) 140838, § 14, the court explained: "Even if a substantiated complaint or grievance results in disciplinary proceedings being instituted, the complaint or grievance does not fall within the section 7(1)(n) exemption because the disciplinary proceedings ‘are a diNerent matter entirely.' [Citation.]"

The Commission argued that the letter is exempt from disclosure under section 7(1)(n) because "[t]he comments in the letter [redacted] shared with the Commission are in the 153 Even assuming a letter sent by non-Commission employees to the Commission can be considered an "employee grievance," the Commission did not demonstrate that the letter is exempt under section 7(1)(n). The court in Peoria Journal Star made clear that an employee grievance that "was created well before any adjudication took place and existed independent of any adjudication[ ]" is not within the scope of the exemption. Peoria Journal Star, 2016 IL App (3d) 140838, { 16. Moreover, the Commission set forth no information suggesting that the subject of the letter is being adjudicated as an employee grievance. Accordingly, the Commission did not sustain its burden of proving that the letter is exempt from disclosure in whole or in part under section 7(1)(n).

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 >nds that:

1) On September 5, 2024, Ms. Donna M. Dowd, Chicago Metro Counsel for the Police Benevolent & Protective Association - Labor Committee, submitted a FOIA request to the Commission seeking a copy of a letter sent to the Commission by current and former COPA employees on or around September 2, 2024, which asked the Commission to investigate the COPA Chief Administrator.

3) In an e-mail on September 24, 2024, Ms. Dowd completed the submission of her Request for Review contesting that denial. The Request for Review was timely >led and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2023 Supp.)).

4) On September 30, 2024, the Public Access Bureau sent a copy of the Request for Review to the Commission and requested an unredacted copy of the withheld record for this oDce's con>dential review, and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemptions.

5) On October 18, 2024, the Commission furnished those materials, including a complete version of its answer for this oDce's con>dential review and a redacted copy to forward to Ms. Dowd. The Commission maintained that its denial was proper, additionally citing sections 7(1)(c), 7(1)(d)(iv), and 7(1)(d)(vi) of FOIA.

6) On that same date, the Public Access Bureau forwarded to Ms. Dowd a copy of the Commission's answer and noti>ed her of her opportunity to reply. On October 24, 2024, she submitted a reply.

7) On November 20, 2024, this oDce properly extended the time within which to issue a binding opinion by 30 business days, to January 8, 2025, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter.

8) 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, unless the disclosure is consented to in writing by the individual subjects of the information." Section 7(1)(c) contains an exception providing that "[t]he disclosure of information that bears on the public duties of public employees and oDcials shall not be considered an invasion of personal privacy."

9) Because the letter bears on the public duties of public employees and because it does not consist of highly personal information that outweighs the legitimate public interest in disclosure, the Commission did not demonstrate that the letter is exempt from disclosure pursuant to section 7(1)(c).

10) Section 7(1)(d)(iv) of FOIA exempts from disclosure "[r]ecords in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would * * * unavoidably disclose the identity of a con>dential source, con>dential information furnished only by the con>dential source, or persons who >le 11) The Commission did not demonstrate that the letter is exempt from disclosure under section 7(1)(d)(iv) because the Commission is not a law enforcement agency and it does not possess the letter for law enforcement purposes.

12) Section 7(1)(d)(vi) of FOIA exempts from disclosure "[r]ecords in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would * * * endanger the life or physical safety of law enforcement personnel or any other person."

13) The Commission did not sustain its burden of proving that the letter is exempt from disclosure under section 7(1)(d)(vi) because the Commission did not demonstrate or provide facts supporting the assertion that disclosure of the contents of the letter would endanger anyone's life or safety.

14) 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 speci>c record or relevant portion of a record shall not be exempt when the record is publicly cited and identi>ed by the head of the public body."

15) The Commission did not sustain its burden of proving that the letter is exempt from disclosure under section 7(1)(f) because the Commission did not demonstrate that the letter is an inter- or intra-agency predecisional and deliberative communication.

16) Section 7(1)(m) of FOIA exempts from disclosure "[c]ommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies."

17) The Commission did not sustain its burden of proving that the letter is exempt from disclosure under section 7(1)(m) because the Commission did not demonstrate that the letter is an internal audit or material prepared or compiled with respect to an internal audit.

18) 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 >nal outcome of cases in which discipline is imposed."

19) The Commission did not sustain its burden of proving that the letter is exempt from disclosure under section 7(1)(n) because the Commission did not demonstrate that the exemption.

Accordingly, the Commission did not prove by clear and convincing evidence that the letter is exempt from disclosure in whole or in part under sections 7(1)(c), 7(1)(d)(iv), 7(1)(d)(vi), 70), 7(11)(m), or 7(1)(n) of FOIA.

Therefore, it is the opinion of the Attorney General that the City of Chicago Community Commission for Public Safety and Accountability violated the requirements of FOIA by improperly denying in its entirety Ms. Dowd's September 5, 2024, Freedom of Information Act request. Accordingly, the Commission is hereby directed to take immediate and appropriate action to comply with this opinion by providing Ms. Dowd with a copy of the responsive letter.

This opinion shall be considered a >nal decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2022). An aggrieved party may obtain judicial review of the decision by >ling 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 Ms. Donna M. Dowd as defendants. See 5 ILCS 140/11.5 (West 2022).

Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

ay [ttt Stet Brent D. Stratton Chief Deputy Attorney General of the foregoing Binding Opinion (Public Access Opinion 24-016) upon:

Ms. Donna M. Dowd Chicago Metro Counsel Police Benevolent & Protective Association — Labor Committee 1616 West Pershing Road Chicago, Illinois 60609 [email protected] Mr. Charles Isaacs Assistant Director Community Commission for Public Safety and Accountability City of Chicago 2 North LaSalle Street, Suite 1600 Chicago, Illinois 60602 Charles. [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 December 27, 2024.

et Dora LEA BARTELT Public Access Counselor LEAH BARTELT Public Access Counselor Public Access Bureau ODce of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6437