Village of Orland Park improperly withheld work-from-home records under 7(1)(kk)

This reading view follows the source PDF's positioned text blocks. Page headers, repeated office furniture, and lower-margin notes are kept out of the narrative; source notes are available below. Reconstruction is automatic and imperfect — the PDF is the authoritative version, and it's linked on this page.

Dear and Ms. Milluzzi:

This determination is issued pursuant to section 9.5(f) of the Freedom of Information Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the Public Access Bureau concludes that the response by the Village of Orland Park ( Village) to the first four parts of April 9, 2020, FOIA request did not violate FOIA, but the Village improperly withheld records responsive to part five.

On that date, submitted a FOIA request to the Village asking:

1] Please provide the criteria used to determine if an employee of the Village of Orland Park was being allowed to work from home due to the Covidl9 pandemic. [ 2] Please provide a list of each and every employee of the Village who was approved to work from home and the reason they were approved to work from home. [ 3] Please provide a list of all the employes [ sic] who were required to come to work at the Village offices and the reason they were required to work from the Village Office. [ 4] Please provide the information on and how she can do her job as administrative assistant to the Mayor and how she can answer calls to the Mayors [sic] Office when she is working from home. [5]

Please provide the list of employees who have remote computer access to the Villages [sic] Systems and networks to perform their Jobs remotely[.][ 1]

On May 4, 2020, the Village responded, denying part five of request pursuant to sections 7(1)(u) and 7(1)(v) of FOIA (5 ILCS 140/7(1)(u), (1)(v) (West 2020)). Additionally, the Village informed that it located no records responsive to parts two and three of his FOIA request. The Village further asserted that parts one and four of the request did not fall within the scope of FOIA, as they posed questions rather than reasonably describing any public records. Later that afternoon, submitted the above-referenced Request for Review disputing the Village' s response to his FOIA request.

On May 8, 2020, this office sent a copy of the Request for Review to the Village and asked it to provide unredacted copies of any and all records that were withheld for this office's confidential review, together with a detailed explanation of the legal and factual bases for the applicability of the section 7(1)(u) and 7(1)(v) of FOIA. This office also asked the Village to provide a detailed written explanation for its responses to parts one and four of FOIA request. Specifically, this office asked the Village to explain whether it possesses any records pertaining to the criteria used to determine if a Village employee could work from home However, "[ a] request to inspect or copy must reasonably identify a public record[.]" Chicago Tribune Co. v. Department of Financial and Professional Regulation, 2014 IL App ( 4th)

130427, ¶33, 8 N.E.3d 11, 19 (2014). A FOIA request " reasonably describes records if 'the agency is able to determine precisely what records are being requested.'" Kowalczyk v. Department of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enforcement Admin., 678 F.2d 315, 326 ( D.C. Cir. 1982)). Public bodies are not required to search beyond the four corners of a FOIA request, nor are they required to divine the requester's intent. Manna v. U.S. Dep' t of Justice, 106 F. Supp. 3d 16, 19 ( D.D.C. 2015). Further, a public body is not required to answer questions or generate new records in response to a FOIA request. Kenyon v.

Garrels, 184 Ill. App. 3d 28, 32 ( 4th Dist. 1989)

In its response to this office, the Village argued that asking for the " criteria" for working from home " is not a request for records" subject to FOIA.2 If the Village possessed a document laying out the requirements or factors involved in deciding who was eligible to work from home, asking for the "criteria" was sufficient to identify such a record. The Village's attorney advised, however, that " the Village * * * confirmed that it did not have a document laying out the criteria for staying or working from home." 3 The Village provided information supporting its assertion on a confidential basis. This office has not received information suggesting that the Village did possess a record listing the criteria.

The Village next argued that part four of the request improperly " asks the Village to provide general information about employment and to explain * * * how she does her job." 4 This office agrees that part four of request did not reasonably identify public records but instead sought an explanation, which the Village was not required to provide under FOIA.

As to parts two and three of the request, the Village argued that asking " the reason why" employees were approved to work from home or required to come to work "is clearly asking the Village to interpret or advise requesters as to the meaning or significance of the public records, which is not allowed or required under FOIA."5 See 5 ILCS 140/3.3 (West 2020) (FOIA is not intended to compel public bodies to interpret or advise requesters as to the meaning or significance of the public records."). Regardless, the Village asserted, it possessed no lists responsive to those two parts of the request, nor did it have a record indicating the reasons why each employee was working remotely or not. This office has not received information indicating that the Village did possess lists responsive to parts two and three of request naming each employee and the rationales for their ability to work remotely. Under the circumstances of this matter, this office concludes that the Village's response to the first four parts of request did not violate FOIA.

Part Five of FOIA Request Under FOIA, a public body " has the burden of proving by clear and convincing evidence" that information it withholds is exempt from disclosure. 5 ILCS 140/1.2 (West 2020).

In its confidential response to this office, the Village argued that the record responsive to part five of request is exempt under sections 7(1)(u), 7(1)(v), and 7(1)(kk) of FOIA because disclosing a list of employees who have remote access to the Village' s computer network could result in a security breach.

Section 7(1)(u) of FOIA Section 7(1)(u) of FOIA exempts from disclosure "[ i]nformation that would disclose or might lead to the disclosure of secret or confidential information, codes, algorithms, programs, or private keys intended to be used to create electronic or digital signatures under the Electronic Commerce Security Act." (Emphasis added.) Section 5-105 of the Electronic Commerce Security Act ( 5 ILCS 175/ 5-105 ( West 2020)) defined an " electronic signature" as " a signature in electronic form attached to or logically associated with an electronic record." 6 The transformation was made. A digital signature is a security procedure.

The Village did not articulate how the language of the section 7(1)(u) exemption, which is narrow and highly technical in nature, could apply to the basic information at issue in the responsive record. Therefore, the Village improperly withheld the employee list pursuant to section 7(1)(u) of FOIA.

Section 7(1)(v) of FOIA Section 7(1)(v) of FOIA exempts from disclosure:

Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. Information exempt under this item may include such things as details pertaining to the mobilization or deployment of In construing statutes such as FOIA, the primary goal is to ascertain and effectuate the intent of the General Assembly. See Southern Illinoisan v. Illinois Dep' t of Public Health, 218 Ill. 2d 390, 415 (2006). "[ W]hen a statute lists several classes of persons or things but provides that the list is not exhaustive, the class of unarticulated persons or things will be interpreted as those 'others such like' the named persons or things." Board of Trustees of Southern Illinois Univ. v. Illinois Dep' t of Human Rights, 159 Ill. 2d 206, 211 ( 1994). In other words, the listed terms are examples of what the General Assembly intended the statute to cover.

See Duffy v. Illinois Dep' t of Human Rights, 354 Ill. App. 3d 236, 239 ( 4th Dist. 2004).

In analyzing the language of section 7(1)(kk), this office has determined that the exemption concerns " types of account information that could be exploited to gain unauthorized access to accounts." Ill. Att'y Gen. PAC Req. Rev. Ltr. 64908 66410, issued January 28, 2021, at 2. In that matter, this office explained that such account access information " is not akin to basic identifying information," such as the names and badge numbers of police officers. Ill. Att'y Gen.

PAC Req. Rev. Ltr. 64908, at 2.

This office' s review of the withheld information confirmed that it is not " similar account information" to credit card numbers, bank account numbers, passwords, and the like.

Therefore, the Village improperly withheld the employee list pursuant to section 7(1)(kk) of FOIA.

In accordance with the conclusions expressed in this letter, this office requests that the Village provide with a copy of the record responsive to part five of his request.

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 clucentemccullough@atg. state.il.us or the Chicago address listed on the first page of this letter.

Very truly yours, CHRISTINA M. LUCENTE-MCCULLOUGH Assistant Attorney General Public Access Bureau 62833 f 3d response complete 71u improper 71v 71kk improper improper mun cc: Via electronic mail Ms. Alexandra Snodsmith Assistant Freedom of Information Officer Village of Orland Park 14700 South Ravinia Avenue Orland Park, Illinois 60462 clerk@orlandpark. org