First Fire Protection District improperly withheld budget documents under 7(1)(f)

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Dear and Ms. Kikos:

District' s denial. He stated that Administrator Jozewiak had referenced the budgetary records during the meeting.

On March 30, 2015, this office sent a copy of the Request for Review to the District and requested unredacted copies of the responsive records for our confidential review, together with a detailed explanation for its assertion of section 7( 1)( f). In particular, this office asked the District to address whether the withheld records had been publicly cited and identified by the head of the District. On April 3, 2015, the District furnished those records and a written response, maintaining that its denial was proper. On June 16, 2015, this office sent a follow up letter to the District, asking it to explain whether the person with the title of "District Administrator" is the " head of the public body" under section 2( e) of FOIA ( 5 ILCS 140/ 2( e) West 2012), as amended by Public Acts 98- 806, effective January 1, 2015; 98- 1129, effective December 3, 2014). On June 23, 2015, the District responded. did not reply.

DETERMINATION

All records in the custody or possession of a public body are presumed to be open to inspection or copying." 5 ILCS 140/ 1. 2 ( West 2016). 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 2016).

prepared, one as if the referendum passed and one as if referendum failed." 2 Administrator Jozefiak merely handed out the budgets, according to the District; "There was no analysis or discussion of the contents by the Trustees nor at any time were the drafts publicly cited by the Trustees." 3 The District asserted that the budgets were properly withheld as preliminary drafts so that they would not " be mistakenly interpreted as the District's plans for the future[.]"^ This office has reviewed unredacted copies of the withheld budgets as well as the minutes of the February 12, 2015, meeting during which the District Administrator passed the budgets out to the trustees. The pertinent portion of the minutes provides, in full:

Ted handed out copies of the first drafted budget of 2015- 2016 with numbers that reflect if the referendum passes or fails, please look over. Ted mentioned that chief sent out an e- mail regarding the Denali lease is ending and the district will be out 962. 00 a month. Ted also mentioned that a Lake County sheriff had wondered if they can store one of their special response vehicles at station 3, as they need to get it out of the old lake county fairgrounds location. Trustees asked that Ted look into a monthly fee to be charged and chief will need to know who needs access to the building to give them a key fob if this is approved. Ted also looked into a loan of $750, 000 at 3- 31/ 2%. Trustee Van Patten stated she looked into a line of credit instead of a loan as she feels this would work out better for the district of only borrowing what they would need, and is checking on the rates. A lengthy discussion ensued regarding the amount of crews the district would be able to pay for if the referendum failed. In summary the trustees said they would pay for 3 employees and 1 metro In response to this office' s inquiry about whether Administrator Jozefiak qualified as the head of the District, the District' s counsel explained:

The administrator has no such authority.

The district administrator position is a part time position that acts as a liaison between the Fire Chief, who runs the day to day operations, and the Board of Trustees of the District. The administrator does not have any authority to contract on behalf of the District, all such authority is exclusively vested in the Board of Trustees and has not been delegated. t61 The District' s counsel also provided this office with a copy of the job description for the District Administrator position, which, conversely, describes the District Administrator as " the chief executive" of the District. In light of that label and the rest of his job description, it appears that Administrator Jozefiak held primary executive and administrative authority for the District or, at a minimum, was the duly authorized designee of the Board of Trustees. Accordingly, the issue is whether he " publicly cited and identified" the budgetary documents within the meaning of section 7( 1)( f).

In Dumke v. City of Chicago, 2013 IL App ( 1st) 121668, 994 N. E. 2d 573 ( 2013), the Illinois Appellate Court considered whether a public statement by the mayor of the City of Chicago " publicly cited and identified" a record for purposes of section 7( 1)( f). The plaintiff alleged that then -Mayor Richard Daley waived the section 7( 1)( f) exemption with respect to a study prepared for the Chicago Police Department by an outside consulting firm when he referred to the study during a press conference and in an ensuing press release. Dumke, 2013 IL App ( 1st) 121668, 716, 17, 994 N.E.2d at 576. At the outset, the court noted that "[ s] ection 7( 1)( f) does not provide any guidance on how much or how little needs to be said or done to constitute an effective waiver. The parties have not advanced or presented any legislative history or citation to any legal authority, nor has our research found any, that assists us in determining what minimum conduct amounts to public citation and identification." Dumke, 2013 IL App 1st) 121668, ¶ 18, 994 N.E.2d at 579. In the absence of authority, the court turned to the plain language of section 7( 1)( f) and found it to be unambiguous:

Both " cite" and " identify" have a plain and ordinary meaning, as well as a common understanding. " Cite" is defined as, "[ t] o mention or bring forward as support, illustration, or proof." Citation.] " Identify" means to " 1 a: to cause to be or become identical b: to conceive as united ( as in spirit, outlook, or principle) groups that are identified with conservation> 2 a: to establish the identity of b: to determine the taxonomic position of (a biological specimen) " establish the identity of: show or prove the sameness of." [ Citation.] ( Emphasis in original.) Dumke, 2013 IL App ( 1st) 121668, ¶ 20, 994 N.E.2d at 580.

Employing those definitions, the court determined:

The mayor cited and identified the report as a " management study requested by Superintendent Weis earlier this year" and its purpose as " the study of police administration staffing." He cited the report and he identified it as support for his reorganization plan. Specifically, he stated that Superintendent Weis requested the management study, and as a result of the study, 130 more police officers would be on the streets keeping the city safe. * * * The mayor identified the individuals and businesses that conducted the study and issued the resulting report. He stated that " the study of police administration staffing" began in 2010 and was conducted pro bono by the Civic Consulting Alliance with the assistance of Ryan Faye. Mayor Daley also stated that A.T. Kearney helped with various parts of the review. Mayor Daley not only identified the study and the key players, but personally thanked them. The mayor also indicated that the report " offers many findings and ways that the department will improve its management." There is no question that the mayor cited and identified the report in public given that it occurred during a press conference that was later available on the mayor' s YouTube page, a summary of which was released in printed form. Dumke, 2013 IL App ( 1st) 121668, ¶ 24, 994 N.E.2d at 582.

The court went on to conclude that because the mayor commended the authors of the management study and directly referred to the management study to support the reorganization plan, the section 7( 1)( f) exemption was waived. Dumke, 2013 IL App ( 1st) 121668, ¶ 28, 994 In this instance, the evidence is less extensive than it was in Dumke; this office lacks the benefit of a recording or transcript of the Board's February 12, 2015, meeting. Nonetheless, it appears that Administrator Jozewiak publicly cited and identified the budget comparisons he prepared within the meaning of section 7( 1)( f). The minutes indicate that during open session, Administrator Jozewiak cited and identified the documents he passed out to the trustees as showing a comparison of budgetary figures based on whether the referendum passed or failed. The minutes further indicate that Administrator Jozewiak discussed the ramifications of his budgetary comparison with the trustees, as they considered " the amount of crews the district would be able to pay for if the referendum failed." 8 Rather than momentarily acknowledging the existence of the budget comparison documents, it appears that Administrator Jozewiak publicly cited and identified them as showing the consequences in the event that the referendum failed. Under these circumstances, the District did not sustain its burden of demonstrating by clear and convincing evidence that the withheld budgets are exempt from disclosure pursuant to section 7( 1)( f). This office requests that the District provide copies of those records to The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. If you have questions, you may contact me at 312) 814- 8413 or jjones@atg. state. il.us. This letter serves to close the matter.

Very truly yours,