SIU School of Medicine properly withheld animal training emails under 7(1)(f)

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Dear Mr. Kennedy and Mr. Martinez:

On October 9. 2013, this office sent a copy of the Request for Review to the School of Medicine and requested copies of the records that were withheld, for our confidential review, together with a detailed explanation of the applicability of section 7( 1)( f) of FOIA. This office received those materials on October 18, 2013. On October 22, 2013, we forwarded a copy of the School of Medicine' s response to the Committee; the Committee did not reply.

DETERMINATION

All public records in the possession or custody of a public body are " presumed to he open to inspection or copying." 5 ILCS 140/ 1. 2 ( West 2012). A public body " has the burden of proving by clear and convincing evidence" that a record is exempt from disclosure. 5 ILCS 140/ 1. 2 ( West 2012).

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 shalt not be exempt when the record is publicly cited and identified by the head of the public body." Emphasis added.). The section 7( 1)( f) exemption is equivalent to the deliberative process Specifically. the Committee argued:

U] nder the statute, Ms. Carlson. as director of SIU' s Office of Public Affairs is the " duly authorized designee" authorized to speak for President, Glenn Poshard, Ph. D., the ' head [ of] the public body," SIU. Because Ms. Carlson has publicly cited and identified SIU' s evaluation of its training methods and SIU' s investigation into its methods of preparing physician trainees for patient care, SIU has waived exemption 7( 1) 0) with respect to the evaluation and the investigation. In Dirmke, the court explained that "[ b] oth cite' and ' identify' have a plain and ordinary meaning, as well as a common understanding," * * *, and * * * " if the communication, record or portion thereof' is ' publicly cited and identified,' it loses its exemption regardless of whether the communication was adopted or incorporated by the agency." [ ] Under these facts and circumstances, it was inappropriate for SIU to invoke exemption 7( 1) 0) to withhold communications related to its evaluation and investigation of SIU' s training methods. 2 • However. the School of Medicine asserted in its response to this office that:

Ms. Carlson was not acting on behalf of President Proshard when she communicated with the media. but was merely acting in her role as Director of the Office of Public Affairs. * * * More importantly, Ms. Carlson did not comment publically about or cite the emails in question. [ The withheld a - mails provided to the Public Access Bureau for confidential review in] Exhibit No. 1 and Exhibit No. 3 have no correlation to the public statement and, in any event. she made no reference to these emails in the public statement. Likewise. Exhibit No. 2 deals with changes being made to a subsequent public statement, not the one at issue. and at no point did Ms. Carlson reference or cite to said email." 3 This office has reviewed the e- mails in question and, as a preliminary matter, has determined that they constitute pre -decisional and deliberative records in which opinions and recommendations are expressed and that they contain discussions relating to the School of Medicine' s policies or actions. Therefore, this office must determine whether the public statement issued by the School of Medicine' s director of public affairs regarding the evaluation of the use of animals in its emergency medicine residency program waived the applicability of the section 7( 1)( f) exemption.

Section 2( e) of FOIA ( West 2012)) defines the "[ h] ead of the public body" as the president, mayor, chairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative authority for the public body, or such person' s duly authorized designee." As discussed below, even if the director of public affairs could be considered the duly authorized designee of the University, there is no indication that the director of public affairs " publicly cited and identified" the e- mails at issue for purposes of section 7( 1)( f).

In Dumke, 2013 IL App ( 1m) 121668, 994 N. E. 2d 573 ( 2013), an Illinois Appellate Court considered whether comments made by the mayor of the City of Chicago ( City) during a press conference on a consultant' s report of the City' s police department operations waived the report from being withheld under section 7( 1)( 1). The court held that because the mayor directly referenced the consultant's report in a press conference as the basis for the City's decision to reassign police officers and issued a press release that also expressly cited the report, the report was no longer protected by the section 7( l)( t) exemption. Specifically, the court program. Our review of these e- mails and the public statement issued by Ms. Carlson that the Committee provided to this office with its Request for Review confirm the School of Medicine's assertion. Under the plain language of the exemption, the head of a public body must cite a specific record or relevant portion of a record[ ]" to waive section 7( 1)( f). (Emphasis added.)

5 ILCS 140/ 7( 1 )( f) ( West 2012). A public statement about a particular subject without reference to a specific record does not preclude a public body from withholding that specific record if it falls within the section of the exemption. Therefore. the Committee' s reliance on Dunike is misplaced, and we conclude that the School of Medicine did not improperly withhold the e- mails in question under section 7( 1)( f) of FOIA.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. If you have any questions. you may contact me by Imail at the Chicago address listed on the first page of this letter or by e- mail at sbarnaby@atg. state. il. us. atg. state. il. us. This letter serves to close this file.

Very truly yours,