Governor's Office of Management and Budget improperly withheld PowerPoint under 7(1)(f)

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Dear Mr. O' Connor and Mr. Clemons -Mosby:

This determination is issued pursuant to section 9. 5( t) of the Freedom of Information Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)). For the reasons discussed below, the Public Access Bureau concludes that the Governor's Office of Management and Budget GOMB) violated the requirements of FOIA by improperly denying a portion of Mr. John O' Connor August 27, 2015, FOIA request.

On that date, Mr. O' Connor, on behalf of the Associated Press, submitted a FOIA request to GOMB seeking copies of any reports or other deliverables produced by Ms. Donna Arduin. On September 3, 2015, GOMB provided responsive records but withheld a " power Point deck in which budget policy is described[,]" citing as its basis for the denial section 7( 1)( f) of FOIA ( 5 ILCS 140/ 7( 1)( f) (West 2014), as amended by Public Act 99- 298, effective August 6, 2015).' Mr. O'Connor disputes the denial of the Microsoft PowerPoint records.

On September 14, 2015, this office forwarded a copy of the Request for Review to GOMB and asked it to provide copies of the responsive records for our confidential review, together with a detailed explanation of the factual and legal bases for its assertion of the section 7( 1)( f) exemption. On September 23, 2015, this office received a copy of the PowerPoint presentation together with GOMB' s written response. This office forwarded a copy of GOMB' s written response to Mr. O' Connor on September 25, 2015; he did not reply.

ANALYSIS

It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with [ FOIA]." 5 ILCS 140/ 1 ( West 2014). Section 3( a) of FOIA ( 5 ILCS 140/ 3( a) ( West 2014)) provides that "[ e] ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8. 5 of this Act." 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 2014).

Section 7( 1)( f) of FOIA, which was asserted by GOMB, 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 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 applies to " inter- and intra -agency predecisional and deliberative material." Harwood v. McDonough, 344 Ill. App. 3d 242, 247 1st Dist. 2003). Section 7( 1)( f) 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. Section 7( 1)( f) does not, however, exempt from disclosure purely factual material. See Ill. Att'y Gen. Pub. Acc. Op. No. 13- 015, issued September 24, 2013, at 7. Rather, "[ o] nly those portions of a predecisional document that reflect the give and take of the deliberative process may be withheld." Kalven v. City of Chicago, 2013 IL App ( 1st) 121846, ¶ 24, 7 N.E.3d 741, 748 ( 2013) ( quoting Public Citizen, Inc. v. Office ofManagement & Budget, 598 F. 3d 865, 876 ( D. C. Cir. 2010)). Further, a public body that asserts the deliberative process exemption " has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States Gas Corp. v. Department of Energy, 617 F. 2d 854, 868 ( D. C. Cir 1980).

PowerPoint slide deck produced by Ms. Arduin[ ] was being withheld as exempt from disclosure under 5 ILCS 140/ 7( 1)( f), as it contained the description of budget policy. " 2 GOMB then relies on the plain language of section 7( 1)( f) to support its assertion that " this PowerPoint presentation is exempt because it is a record ' in which opinions are expressed, or policies or actions are formulated. ii3 The response by GOMB further states:

The withheld PowerPoint was presented to GOMB analysts as training material on preparing for their role in the Fiscal Year 2017 budget development process. Throughout the PowerPoint presentation, Ms. Arduin expresses opinions and provides recommendations to the analysts on how best to go about their vital role of gathering and analyzing budget information. Developing a budget is the chief job responsibility of GOMB analysts]; this responsibility necessarily involves deliberation and planning. Opinions and suggestions on how analysts go about the process of gathering and analyzing information are at their core fundamental to the formulation of budgetary policy. Different methods of gathering and analyzing information by analysts will, in the end, result in very different final budget presentations.l41 GOMB' s response also asserts that " all records in its possession reflecting the internal discussions, deliberations, preliminary proposals, calculations, and assumptions utilized to produce the Budget Books are preliminary and deliberative, and as such are exempt from disclosure under FOIA' s Section 7( 1)( f) Pre -Decisional Exemption. i5 As an initial matter, we note that Ms. Arduin, who produced the PowerPoint presentation, was serving as a budget consultant to the Governor' s Office. The section 7( 1)( f) exemption encompasses " communications between government agencies and outside consultants whose analyses and recommendations ' played essentially the same part in an agency' s process of deliberation as documents prepared [ internal citation] by agency personnel might have done.'" Harwood, 344 Ill. App. 3d at 248, quoting Department ofthe Interior v. Klamath Water Users Protective Ass' n., 532 U. S. 1, 10, 121 S. Ct. 1060, 1067 ( 2001). Thus, in Harwood the court concluded that a report prepared by an outside consultant for a State agency fell within the scope of section 7( 1)( f) partly because the consultant did "' not represent an interest of its own, or the interest of any other client,"' when it advised the agency. Harwood, 344 Ill. App. 3d at 248, quoting Klamath Water Users Protective Ass' n., 532 U.S. at 11, 121 S. Ct. at 1067. Likewise, there is no indication that Ms. Arduin represented any interests other than those of the Governor's Office in connection with the records at issue. Therefore, our determination in this matter hinges on the issue of whether the withheld PowerPoint presentation constitutes exempt pre -decisional deliberative material.

In American Immigration Council v. United States Department of Homeland Security, 905 F. Supp. 2d 206, 218 ( D. D.C. 2012), a federal district court considered whether five versions of PowerPoint slides used by the U. S. Citizenship and Immigration Services USCIS) to train agency employees to interact with private attorneys were properly withheld under the deliberative process exemption ( Exemption 5) in the Federal FOIA ( 5 U.S. C. 552( b)( 5) ( 2010)). 6 At the outset, the court stated that for the deliberative process exemption to policy, and the withholding of all papers which reflect the agency' s group thinking in the process of working out its policy and determining what its law shall be.' American Immigration Council, 905 F. Supp. 2d at 218, quoting Sears, Roebuck & Co., 421 U. S. 132, 153, 95 S. Ct. 1504, 1517- 18 1975). Because the training materials reflected the agency' s established policy rather than its deliberations, the court held that the deliberative process exemption did not apply: " These training slides are neither predecisional nor deliberative. A training is not a step in making a decision; it is a way to disseminate a decision already made. Indeed, by teaching USCIS employees to go forth and apply the information in the slides, USCIS entrenched its policies." American Immigration Council, 905 F. Supp.2d at 218.

Similarly, in Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 254 ( D.D.C. 2005), the United States Department of Justice cited — among other provisions Exemption 5 to deny an advocacy group' s request for a draft of a training manual on the Prosecution of federal election offenses. In addition to emphasizing that the training manual had been shared with non -Justice Department attorneys during a symposium, the court concluded that the training manual was not predecisional deliberative material because it " had been adopted as guidance." Leadership Conference on Civil Rights, 404 F. Supp. 2d at 255. The court further controlling, may provide helpful and relevant precedents in construing the State Act. See, e. g., Margolis v. Director, 111. Department ofRevenue, 180 Ill. App. 3d 1084, 1087 ( 1st Dist. 1989). In the absence of reported Illinois cases relating to the disclosure of training materials under FOIA, the analysis and reasoning of these federal cases is persuasive.

GOMB's response to this office acknowledged that the PowerPoint presentation at issue " contained the description of budget policy[ ]" and was " presented to GOMB analysts as training material on preparing for their role in the Fiscal Year 2017 budget development process." 7 While GOMB' s response to this office also describes in detail the back -and -forth collaborative process that takes place as a budget is being crafted, the PowerPoint presentation does not reflect any of the " internal deliberations and discussions, iterations of proposals, calculations, and assumptions that combine to ultimately produce the Budget Book." 8 Instead, as noted above, the PowerPoint slides largely consisted of general policy considerations for budget making and conceptual principles concerning the role of government, as well as directives to the budget analysts about how to apply those principles and to communicate with the involved parties. The presentation does not reflect the give and take of any deliberative process concerning the formulation of a specific budget, or any deliberative process between Ms. Arduin, who conducted the training, and the budget analysts who attended. Rather, the training materials constitute straightforward policy directives and guidance for budget analysts to use when they are participating in formulating budgets. In short, the PowerPoint itself is not a draft or predecisional — any decisions that may have been made with respect to what policies and information would be provided to budget analysts to help them prepare for their role in the budget process were finalized and memorialized in the slides that were presented as guidance to them. Additionally, the PowerPoint presentation is not deliberative — it explains the considerations and policies that should guide the budget analysts in their role rather than reflecting the process of working out which policies and considerations should guide the demonstrating by clear and convincing evidence that the PowerPoint slides at issue in this matter are exempt from disclosure pursuant to section 7( 1)( f) of FOIA.

In accordance with the conclusions expressed in this determination, this office requests that GOMB furnish a copy of the PowerPoint presentation to Mr. O' Connor. 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, please contact me at ( 312) 814- 6756. This letter serves to close this file.

Very truly yours, Assistant Bureau Chief