Basis for Withholding Communication From Former Attorney

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Dear Mr, Giuliani and Ms. Kennedy:

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 2024)). For the reasons discussed below, this office concludes that Hinsdale Township High School District 86 (District) improperly withheld a record responsive to Mr. David Giuliani's March 17, 2025, FOTA request.

On that date, Mr. Giuliani, on behalf of Patch, submitted a FOIA request to the District seeking "the Robbins Schwartz attachment" to a December 9, 2024, e-mail sent from Catherine Greenspon, the president of the District's Board of Education (Board), to the rest of the Board's members and the attachment to another specified e-mail.' On March 24, 2025, the On April 4, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the District, accompanied by a letter requesting an unredacted copy of the contested record for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemptions.> On May 27, 2025, counsel for the District furnished those materials, including a complete version of its answer for this office's confidential review and a copy with confidential information redacted® for forwarding to Mr. Giualiani.’ The response clarified that the District asserted the December 9, 2024, e-mail attachment was exempt from disclosure pursuant to sections 7(1)(a), 7(1)(f), and 7(1)(m) of FOIA and that section 7.5(r) of FOIA applied only to portions of the other record,® which is not at issue in this matter.? On May 28, 2025, this office forwarded a copy of the Department's redacted answer to Mr. Giuliani and notified him of his opportunity to reply in writing.'° Mr. Giuliani replied on that same date.!!

ANALYSIS

It is the public policy of the State of Iilinois that "all persons are entitled to full and complete information regarding the affairs of government." 5 ILCS 140/1 (West 2024). 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 2024).

Section 7(1)(m) of FOTIA Section 7(1)(m) of FOIA exempts from diselosure:

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 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.

Communications protected by the attorney-client privilege are within the scope of section 7(1)(m). People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 (1997). A party asserting that a communication to an attorney is protected by the attorney-client privilege "must show that (1) a statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services;

and (3) it remained confidential." (Emphasis added.) Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2006). Documents protected by the attorney-client privilege must contain confidential communications in which legal advice is requested or provided. See Chicago Trust Co. v. Cook County Hospital, 298 Ill. App. 3d 396, 408-09 (1998) (finding the attorney-client privilege inapplicable because the documents at issue did not show that the client was seeking legal advice). "The privilege applies not only to the communications of a client to his attorney, but also to the advice of an attorney to his client." /n re Marriage of Granger, 197 Ill. App. 3d 363, 374 (1990). A public body that withholds records under section 7(1)(m) "can meet its burden only by providing some objective indicia that the exemption is applicable under the circumstances." (Emphasis in original.) //inois Education Ass'n v. Illinois State Board of Education, 204 Ill. 2d 456, 470 (2003).

and copying other Board members, the District Superintendent, and two attorneys for the District's new law firm.'? Mr. Giuliani stated that Robbins Schwartz discontinued its representation of the District approximately three months before the December 9, 2024, correspondence.!* Before the December 9, 2024, e-mail, the District's Board of Education voted against paying the former firm for its services.!> As suggested by the subject line of the e-mail chain—"Re: Follow up — Invoices for Legal Services"—the attachment at issue in this matter relates to this billing dispute. Mr. Giuliani questioned whether the attachment contained privileged attorney-client communications or merely billing information, and argued that "Robbins Schwartz is an adversarial party that is not part of the district's decision-making process."!® The non-confidential portion of the District's response acknowledged that "Robbins Schwartz was terminated as the District's legal Counsell[,]" but asserted that "the privileged nature of the communications is not destroyed by the fact that Robbins Schwartz is the District's former attorney."!’ The District further argued:

Even billing statements are recognized as privileged communications because documents detailing services performed, the time dedicated to such services, and the nature of the legal advice can disclose sensitive information, such as the client’s motivations for seeking legal counsel. the anticipated scope of representation, and other confidential matters exchanged during the course of the attorney-client relationship. Any demand for such records would constitute an inappropriate intrusion into this privileged relationship, as cited in Weeks v. Samsung Heavy Indus., Ltd., 93 C 4899, 1996 WL 288511, at *2 (N.D. Ill. May 30, 1996), The above-cited cases do not establish that billing statements attorneys submit to clients are per se privileged attorney-client communications. In the first case, the United States District Court for the Northern District of Illinois granted a motion for a protective order when a plaintiff inadvertently "received confidential billing statements which on their face are subject to the attorney-client privilege." Weeks, No. 93-C 4899, 1996 U.S. Dist. LEXIS 7397, at *8.

Rather than concluding that all billing statements are protected by the attorney-client privilege, the court observed that the inadvertently disclosed statement "concerned whether and how Samsung should make a variety of employment and other legal decisions. This bill reflects Baker & McKenzie's role as Samsung's professional legal adviser." Weeks, No. 93-C 4899, 1996 U.S. Dist. LEXIS 7397, at *8. In the second cited case, the United States Court of Appeals for the Ninth Circuit reversed a lower court decision denying a motion to quash a subpoena that was "not limited to transactions relating to legal fees or trust funds. On its face, the quoted language clearly encompasses information protected by the attorney-client privilege." Jn re Grand Jury Subpoena Issued to Horn, No. 91-15577, 1992 U.S. App. Lexis 30917, at *9. The court emphasized that the "documents may reveal the client's motivation for seeking legal representation, the nature of the services provided or contemplated, strategies to be employed in the event of litigation, and other confidential information exchanged during the course of the representation.” /n re Grand Jury Subpoena Issued to Horn, No. 91-15577, 1992 U.S. App.

Lexis 30917, at *9. Neither of these cases stands for the general proposition that the attorney- client privilege protects all records related to billing statements, or billing statements themselves in their entireties.

Indeed, the same Ninth Circuit Court of Appeals that decided /n re Grand Jury Subpoena Issued To Horn held, in Clarke v. American Commerce National Bank, 974 F.2d 127, 130 (9th Cir. 1992), that legal billing statements containing the "identity of the client, the case name for which payment was made, the amount of the fee, and the general nature of the services performed[]" were not privileged attorney-client communications because they did not reveal “specific research or litigation strategy which would be entitled to protection from disclosure." Likewise, in People ex rel. Ulrich, 294 Ill. App. 3d at 203-04, the Illinois Supreme Court held that "information regarding a client's fees generally is not a ‘confidential communication' between an attorney and client, and thus is not protected by the attorney client privilege. [Citations.] The payment of fees is merely incidental to the attorney-client relationship and typically does not involve the disclosure of confidential communications arising from the relationship." The Court, however, acknowledged that "[c]ertain types of billing records may contain explanations of legal fees and may indicate the type of work done or matters discussed between the attorney and client. As such, they could reveal the substance of confidential attorney-client discussions, and be subject to valid claims of attorney-client privilege or exemption under [FOIA]." (Emphasis added). Stuke/, 294 Ill. App. 3d at 201.

legal representation, or litigation strategy—the record does not even reference any specific matters for which the attorney represented the District. Unlike invoices or billing statements, which often require the redaction of information that would reveal the specific nature of the attorney's legal services, the contested record relates broadly to the billing dispute between the District and its former counsel. The record does not reveal the substance of matters on which the District sought legal advice or any legal advice the District's former attorney provided while acting as its legal advisor. Accordingly, the District did not demonstrate by clear and convincing evidence that the record is exempt from disclosure pursuant to section 7(1)(m) of FOIA.

Section 7(1)(a) of FOIA and the Rules of Professional Conduct Section 7(1)(a) of FOIA exempts from disclosure "[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law." Under this provision, "an exemption restricting the expansive nature of the FOIA's disclosure provisions must be explicitly stated--that is, such a proposed disclosure must be specifically prohibited." (Emphasis in original.) Better Government Ass'n v. Blagojevich, 386 Ill. App. 3d 808, 816 (2008). In that case, the Illinois Appellate Court held that the Governor could not withhold a federal grand jury subpoena under section 7(1)(a) because, although the Federal Rules of Criminal Procedure prohibited certain parties such as grand jurors or government attorneys from disclosing a matter occurring before a grand jury, those rules did not "specifically restrict the behavior of subpoena recipients.” Better Government Ass'n, 386 Ill. App. 3d at 815.

In its non-confidential response, the District argued that portions of three ILlinois Supreme Court Rules of Professional Conduct prohibit the District from disclosing the record at issue. First, Illinois Supreme Court Rule of Professional Conduct 1.6'° provides, in pertinent (c) A lawyer shall reveal information relating to the representation to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily injury.

(e) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

The District argued: "By its plain language, Rule 1.6 applies universally. It contains no exception for public bodies responding to FOIA requests."

The District also cited sections 1.4(a)(4)?! and 1.4(b)*? of the Illinois Supreme Court Rules of Professional Conduct, arguing that those provisions require "attorneys to keep their clients informed while ensuring the protection of privileged communications."*? Rule 1.4 provides, in pertinent part:

(a) A lawyer shall:

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

* OK OF (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

The Illinois Supreme Court Rules of Professional Conduct govern the duties and functions of attorneys—not public bodies such as the District. By their plain language, each of the rules cited by the District apply to "a lawyer" and do not extend to the lawyer's client. A rule that prohibits disclosure of records or information by parties other than public bodies does not specifically prohibit public bodies from disclosing records. Here, the District is the former client and recipient of the FOIA request. Rules 1.4, 1.6 and 1.9 do not place a limitation on the disclosure of information by a lawyer's client, including a public body that has received a FOIA request. Because these rules do not specifically prohibit a public body from disclosing records in response to a FOJA request, the District has not met its burden of proving by clear and convincing evidence that the contested record is exempt under section 7(1)(a) of FOIA.

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 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 section 7(1)(f) exemption is equivalent in most respects to the deliberative process exemption in the Federal FOIA (5 U.S.C. § 552(b)(5) (2018)), which applies to "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 final decision is made." Harwood, 344 Ill. App. 3d at 248. "In order to be exempt under this provision, the responsive materials must be both (1) inter or intra agency and (2) predecisional and deliberative." Fisher v. Office of the Illinois Attorney General, 2021 IL App (1st) 200225, § 19.

body to meet the threshold requirement of section 7(1)(f). See Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (source of a record "must be a Government agency|]|" to be exempt under the deliberative process exemption in Federal FOIA). Records prepared by an outside consultant may be considered "intra-agency" records if the consultant "played essentially the same part in an agency's process of deliberation as documents prepared by agency personnel might have done[,]" and "the consultant does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it." Klamath Water Users Protective Ass'n, 532 U.S. at 10-11; see also Ill. Att'y Gen. Pub. Acc. Op. No. 21-004, issued May 24, 2021, at 6 (concluding that communications between a city and a business seeking a zoning variation were not exempt under section 7(1)(f) because the business had interests independent from the city and stood to benefit from the city's final decision concerning the application).

The District argued that the contested record is exempt from disclosure pursuant to section 7(1)(f) because "the District's former attorney and current counsel were functioning in an agency-like role[.]"?’ The District asserted that the contested record is "precisely the type of internal deliberative materials" that the deliberative process exemption is intended to protect.7® The District further addressed the applicability of the section 7(1)(f) exemption in the confidential portions of its response.

This office's review of the contested record found that it does not reflect a deliberation with a third party acting on the District's behalf. Instead, it is apparent from the content of the record that it is a communication to the District from a party with independent interests. The Department's confidential arguments did not demonstrate the interests of its former counsel were aligned with its own at the time it received the correspondence. Accordingly, the District did not demonstrate by clear and convincing evidence that the record falls within the scope of section 7(1)(f) as an inter- or intra-agency deliberative record.

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:

a December 9, 2024, e-mail sent to Ms. Catherine Greenspon.

2) On March 24, 2025, the District denied the request pursuant to sections 7(1)(a), 71.)(f), 71. )(m), and 7.5(r) of FOIA, 3) On April 3, 2025, Mr. Giuliani submitted the above-referenced Request for Review contesting the denial of the portion of the request seeking the December 9, 2024, e-mail attachment.

4) On April 4, 2025, the Public Access Bureau sent a copy of the Request for Review to the District and asked it to provide a copy of the contested e-mail attachment for this office's confidential review. This office also asked the District to provide a detailed explanation of the factual and legal bases for its denial of that record.

5) On May 27, 2025, the District furnished the requested materials to this office, including a complete version of its answer for this office's confidential review and a redacted copy to forward to Mr. Giuliani.

6) On May 28, 2025, the Public Access Bureau forwarded a copy of the District's written answer to Mr. Giuliani and notified him of his right to reply.

7) On that same date, Mr. Giuliani replied.

8) On May 29, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter.

10) The record at issue in this Request for Review is a communication from the District's former attorney at Robbins Schwartz to the District's Board of Education. The correspondence was attached to a December 9, 2024, e-mail with the subject line, "Follow up — Invoices for Legal Services[.]"

11) 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."

12) The record at issue does not contain or reference any legal advice sought by or given to the District by the District's former attorney or otherwise reveal substantive details of any legal work performed for the District. Accordingly, this office concludes that the District 13) Section 7(1)(a) exempts from disclosure "[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law."

14) Rules 1.4, 1.6, and 1.9 of the Illinois Supreme Court Rules of Professional Conduct do not contain any specific prohibitions on the disclosure of records by an attorney's client or former client. Because the District is the former client and recipient of the request, the District has not met its burden of proving that the withheld record is exempt from disclosure under section 7(1)(a) of FOIA.

15) Section 7(1)(f) of FOIA exempts from inspection and copying, in relevant part, "[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated[.]" For the exemption to extend to a third party hired by a public body, the third party must represent the interest of the public body and not its own interest or that of another client.

16) The record at issue reflects the interests of the District's former attorney. Those interests are independent of the District's interests in the content of the communication. Accordingly, this office concludes that the District has not met its burden of proving that the withheld record is exempt from disclosure under section 7(1)(f) of FOIA.

Therefore, it is the opinion of the Attorney General that Hinsdale Township High School District 86 improperly withheld the contested record in response to David Giuliani's March 17, 2025, Freedom of Information Act. Accordingly, the District is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Giuliani with a copy of the withheld record.

et seq. (West 2024). 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. David Giuliani as defendants. See 5 ILCS 140/11.5 (West 2024).

Very truly yours,

KWAME RAOUL ATTORNEY GENERAL

Brent D. Stratton Chief Deputy Attorney General Chicago, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-008) upon:

Mr. David Giuliani Reporter Patch 1024 East Bonner Road Wauconda, Illinois 60084 [email protected] Ms. Leslie Quade Kennedy Attorney for Hinsdale Township High School District 86 Senior Partner Odelson, Murphey, Frazier & McGrath, Ltd.

3318 West 95th Street Evergreen Park, Illinois [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 July 15, 2025.

Edie Steinberg Senior Assistant Attorney <<.

Edie Steinberg Senior Assistant Attorney General Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-5201