City of Peoria improperly withheld employee misconduct investigation records under 7(1)(a), (c), (f), (m)

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Dear Mr. McGrath and Ms. Peterson:

This determination is issued pursuant to section 9. 5( f) of the Freedom of Information Act (FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2018)). For the reasons that follow, the Public Access Bureau concludes that the City of Peoria ( City) improperly withheld certain limited information in the records responsive to Mr. Patrick B. McGrath' s January 9, 2020, FOIA 2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019). On February 19, 2020, this office receiv d Mr. McGrath' s completed Request for Review contesting the City' s partial denial.

On February 20, 2020, this office forwarded a copy of the Request for Review to the City and asked it to provide unredacted copies of the responsive records for this office' s confidential review, together with a detailed explanation of the legal and factual bases for the applicability of the asserted exemptions. On February 27, 2020, this office received the requested materials. On March 2, 2020, this office forwarded a copy of the City's response to Mr. McGrath; he did not submit a reply.

1 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 2018); see also Southern Illinoisan v. Illinois Department ofPublic Health, 218 Ill. 2d 390, 415 ( 2006). A public body that withholds or redacts a record " has the burden of proving by clear and convincing evidence" that the information is exempt from disclosure. 5 ILCS 140/ 1. 2 ( West 2018). The exemptions from disclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 ( 1997).

that standard has been met. Schessler v. Department ofConservation, 256 Ill. App. 3d 198, 202 4th Dist. 1994).

The Public Access Bureau has consistently determined that records pertaining to complaints or allegations of misconduct against public employees are generally not exempt from disclosure in their entireties under section 7( 1)( c) because such information bears on the performance of the employees' public duties. See, for example, Ill. Att' y Gen. PAC Req. Rev. Ltr. 31045, issued Aprils 13, 2015; Ill. Att'y Gen. PAC Req. Rev. Ltr. 60991, issued March 12, 2020. With respect to sexual misconduct or harassment complaints, this office! has recognized that complainants have legitimate privacy interests in the information they subrnit, but determined that "[ r] edacting the relatively minimal content that could be characterized as salacious and disclosing the remaining information concerning the alleged misconduct would strike the appropriate balance between the public interest and the complainant's privacy interest." Ill. Att'y Gen. PAC Req. Rev. Ltr. 52303, issued October 16, 2018, at 6. Additionally, this office determined that redacting personally -identifying information of any complainants and witnesses him. Because such information bears directly on the public duties of Mr. Elias', its disclosure would not constitute a clearly unwarranted invasion of personal privacy. Accordingly, this office concludes that the City has not demonstrated by clear and convincing evidence that all of the redacted information in the e- mail from Mr. Elias falls within the scope of section 7( 1)( c). 2 This office' s review of the letter from Ms. Fuller similarly confirmed that the City redacted portions in which Ms. Fuller discussed accusations made against her related to sexual conduct and her personal relationships and marital status. This office agrees that Ms. Fuller' s discussion of her personal relationships do not pertain directly to her employment or work performance. The discussion reveals specific details about Ms. Fuller' s private ' life thatare highly personal in nature, the disclosure of which would be objectionable to a reasonable person. However, the information redacted from the fourth paragraph of the letter pertains to alleged misconduct at the workplace. Such information bears on Ms. Fuller' s employment and public duties. Accordingly, this office concludes that the City has not demonstrated by clear and convincing evidence that all of the redacted information in the letter from Ms. Fuller falls within the scope of section 7( 1)( c).

Section 7( 1)( f) of FOIA Section 7( 1)( f) 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 International, Inc. v. United States Environmental Protection Agency, 371 F. 3d 370, 374- 75 ( 7th Cir. 2004)).

With regard to interview notes, the Public Access Bureau has previously determined that handwritten notes reflecting an evaluator' s mental impressions of an individual may fall within the scope of section 7( 1)( f). See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 48868, issued October 17, 2017, at 4 ( handwritten notes reflecting mental impressions of board member about university president' s job performance exempt from disclosure);' I11. Att'y Gen. PAC Req. Rev. Ltr. 58984, issued August 1, 2019, at 2 ( public body did not improperly deny a request for a copy of interview notes because they were preliminary to a hiring, decision and reflected the note -takers' mental impressions of a job applicant). But see Ill. Att'y Gen. PAC Req. Rev. Ltr. 50756, issued March 12, 2018, at 5 ( handwritten notes that appeared to be factual descriptions or summaries of a meeting not exempt from disclosure under section 7( 1)( f) where there was no evidence they were deliberative).

The City argued that it withheld certain preliminary notes and draft documents that fell within the scope of section 7( 1)( f). In particular, the City asserted that it withheld: ( 1)

personal notes taken by Human Resource Director, Mary Ann Stalcup" related:to her interviews with Mr. Elias and Ms. Fuller; (2) " handwritten notes of Attorney [ Donald] Leist as well as the questions he formulated to interview Elias" and likewise handwritten notes and questions related to his interview of Ms. Fuller; and ( 3) documents " drafted by Leist as part of his investigation into the matter" of the complaint involving Mr. Elias and Ms. Fuller that were not presented to either individuals or executed. 3 The City argued that most of the records constituted preliminary drafts, notes, recommendations, memoranda, and other records in which opinions were expressed by Attorney Donald Leist[,]" who served as the City's Corporation Counsel; the City argued that those records are further exempt from disclosure under section 7( 1)( m). 4 Additionally, the City contended that it had redacted one e- mail because it was protected by the attorney- client privilege. Specifically, the City stated that the " communication was from Attorney Jill O' Brien ( who provides employment law services to the City) to Attorney Donald Leist[.] 15 This office's review ofthe handwritten notes of Ms. Stalcup and Mr. Leist determined that the notes reflect their mental impressions of Mr. Elias and Ms. Fuller, as they questioned the two individuals regarding the incident that was the subject of a complaint. The notes contain details reflecting the formulation of action and reveal opinions about the two individuals and the relevant incident. While the notes contain factual information about the incident, the information is inextricably intertwined with the mental impressions of Ms. Stalcup and Mr. Leist. This office' s review of the documents prepared by Mr. Leist as part of the investigation also confirmed that the City withheld certain draft materials that had not been executed; the materials do not reflect final decisions. Further, there is no indication that the documents were disclosed to Mr. Elias or Ms. Fuller. This office has also reviewed the e- mail from Ms. O'Brien to Mr. Leist and determined that the e- mail reflects Ms. O'Brien acting as a consultant to the City. Disclosure of the e- mail would provide insight into the City' s deliberative process, as Ms. O'Brien advised the City on how to proceed with the investigation of the complaint. There is no indication that the handwritten notes, documents, and communication have been publicly cited and identified by the head of the City. Because those records are preliminary and deliberative in nature, the City did not improperlywithhold the;records pursuant to section 7( 1)( f).6 In accordance with the conclusions expressed in this determination, this office requests that the City disclose the first, fifth, and sixth sentences of the last paragraph of the e- mail, dated February 23, 2017, from Mr. Elias. This office also requests that the City disclose the entire fourth paragraph of the letter, dated February 23, 2017, from Ms. Fuller.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter shall serve to close this matter. If you have any questions, please contact me at the Chicago address listed on the first page of this letter.

Very truly yours, 61760 f 71c proper improper 71f proper mun