City of Urbana failed to prove 7(1)(c) exemption for police chief candidate's resume

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Dear- and Mr. McNeil:

City di d not provide any records related to Mr. Boone' s candidacy, particularly any records that were gathered by Polihire during the search process. Those records would be res ponsive to parts two and three of his request.

On May 11, 2023, this office forwarded a copy of the Request for Review to the City and asked it to provide copies of the withheld records, together with a detailed explanation of the factual and legal bases for the applicability of the asserted exemptions. On June 5 , 2023, th is office received the requested materials. On June 7, 2023, this office forwarded a copy of the City' s response to - he did not submit a rep ly.

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 2022); see also Southern Illinoisan v.

fllinois Departm en t of Public Health , 218 Ill. 2d 390, 4 15 ( 2006). A public body th at w ithholds records " has the burden of proving by clear and convincing evidence" that the records are exemp t from di sclosure. 5 ILCS 140/ 1.2 ( West 2022). The exemptions from disclosure are to be narrow ly construed. Lieber v. Board a/Trustees ofSouthern Illinois University, 176 Ill. 2d 401, 407 ( 1997).

Section 7( 1)( c) of FOIA exempts from disclosure "[ p] ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invas ion of personal privacy." Section 7(1)( c) d efi nes " unwarranted invasion of p ersonal privacy" as the " disclosu re of information that is highly personal or obj ectionable to a reasonable person and in which the subject' s right to privacy outweighs any legiti mate public interest in obtaini ng the information. The disclosure of informati on that bears on the public duties of public employees and officials sha ll not be conside red an invas ion of personal privacy."

Police Chief Finalis t' s Application M a teria ls In bis Request for Rev iew, - argued that the City im p roperly denied his request fo r records p ertaining to M r. Boone' s candidacy because Mr. Boone was publicly identified as the finalist for the poli ce chief position and already a public figure. He further argued that there is a legitimate public interes t in dis closure of information concerning the City' s top pick for a high- level job. He asserted, in relevant part: " Larry Boone bas been a publ ic official fo r most, if not a ll , of his career. He h as applied to a position of substan tial public interest, his identity has been announced, and he has been declared the sole finalist for the position of Police Chief. " 3 In its response to this office, the City acknowledged it had publicly identified Mr.

Boone as a police chief finalist after its April 3, 2023, Committee of the Whole meeting, but maintained it properly withhe ld Mr. Boone' s application material s because it had not yet made a fi nal hiring decision. The City asserted that its announcement " indicated that additional interviews with the appli cant were ongoing[,]" 4 and an official job offer had not been extended to Mr. Boone. The City contended it could still elect not to offer him the job or Mr. Boone could withdraw hi s name from consideration or decl ine the job if an offer was later made. The City noted that in previous determinations, the Public Access Bureau has conclud ed that pending or unsuccessfu l applications fo r public employment are exempt from disclosure pursuant to section 7 ( 1 )( c ). Those determinations, however, are dis tinguishable from this matter.

T he Public Access Bureau' s previous determinations concerned pending or unsuccessfu l applicants who had not already been publicly identified as seeking public employment. The rationale for those determinations is that disclosure of information that identifies individual s who un successfull y sou ght or currently are seeking a new job may negative ly impact their current employment, w hich could chill them from applying in the first place and hamper a public body from attracting qualified app li cants for open pos iti ons. Ill. Att' y Gen. PAC Req. Rev. Ltr. 5258 1, issue d February 21, 2021. This office also reas one d that di sclosure of in formation identifying individual s w ho unsuccessfully sought a position could cause embarrassment and dis su ade applicants from apply ing in the future. Ill. Att' y Gen. PAC Req. Rev. Ltr. 59938, issued October 21, 2019. Those privacy concerns are not present in this matter because the City publicly identified Mr. Boone as a finalist for police chief before- s ubmitte d his request.

A public body' s contention that the release of information would constitute an unwarranted invasion of personal privacy is evaluated on a case- by- case basis . Chicago Journeymen Plumbers' Local Un io n 130, UA. v. D epartment ofPublic Health, 327 Ill. App. 3d 192, 196 ( I st Dist. 200 l ). The phrase " clearly unwaITanted invasion of personal privacy"

evinces a strict standard to claim the exemption, and the burden is on the government agency having charge of the record to prove that standard has been met. Schessler v. Department of Conservation, 256 Ill. App. 3d 198, 202 ( 4th Dist. 1994). Illinois courts consider the fo ll owing fac tors in determining whether di sclosure of information would co ns titute an unwarranted invas ion of personal privacy: "( 1) the plainti ffs interest in di sclosure, ( 2) the public interest in disclosure, ( 3) the degree of invasion of personal privacy, and ( 4) the availability of alternative means of obtainin g the requested in formation." National Ass' n ofCriminal D efense Lawyers v.

Chicago Police Department, 399 Ill . App. 3d l, 13 ( l st Dist. 2010).

Applying the first and second factors of the balancing test to Mr. Boone' s application materials, interest in disclosure is as a member ofthe public seeking to learn more about the City's top choice for police chief. interest in disclosure is aligned with the public' s interest in obtaining information concern in g Mr. Boone' s qualificatio ns for the position. There is a compelling public interest in information that sheds light on the ne xt potential police chief, who will have significant leadership authority and responsibilities as the head of the City' s law enforcement branch.

Applying the third factor, the City emphasized that Mr. Boone had not yet been offer the job and thus " at this time the applicant is still afforded the privacy of a pending app licant. " 5 Mr. Boone' s app lication materials included a letter of interest and resume. Th e City argued it "properly balanced the public's right to know with the privacy ofa non-employee by providing significant information about both the hiring process and the final candidate while preserving the applicant' s privacy to the extent possib le. " 6 Lastly, applying the fourth factor, the City argued that there are alternative means to obtain relevant information about Mr. Boone' s work hi story. In particular, the C ity noted that could submit a FOIA request to Mr. Boone' s current or previous public employers and seek records related to his work experi ences.

could request information from other governmental entities that previously employed Mr. Boone, there is no indication that there are any alternative means to obtain the application materials he submitted to the City. Under these circumstances, the City did not demonstrate by clear and convincing evidence that the privacy rights ofMr. Boone outweigh the legitimate public interest in disclosure of his application materials. According ly, this office concludes that the City did not sustain its burden ofshowing that Mr. Boone's application materials fall within the scope ofsection 7(1)(c).

Records Concerning Selection and Interview Process The City asserted it did not possess records responsive to part three of.

request at the time ofhis submission. The City explained that neither the City nor Polihire received any records from references or other third parties on behalf ofMr. Boone. The City further asserted that a number ofrecords related to Mr. Boone's candidacy "were created after the date of the FO[ A request[.]' 0 Additionally, the City stated it withheld " trans itory email communications between Polihire and the City regarding the hiring process and which also include attachments regarding the applicants. 118 The City contended that those e-mails were not responsive to the request and, even if they were, fell w ithin the scope of section 7( 1)( c). The City provided this office with copies ofthese records to illustrate its ongoing selection and interview process .

This office's review ofthe records confirmed that a portion ofthe City's records pertaining to Mr. Boone's candidacy and interview process were prepared after the submission of request. Records that do not exist at the time ofa request are not responsive to the candidates included Mr. Boone and certain other individuals. With the exception ofone e-mail attachment containing Mr. Boone's application, the remaining parts ofthose two e-mails pertain to the other candidates . Disclosure of information concerning those unsuccessful candidates, including their applications, would constitute an unwarranted invasion ofpersonal privacy. As discussed above, disclosure of records identifying unsuccessful applicants could cause embarrassment, interfere with the applicants' existing employment, and hamper public bodies from attracting qualified applicants for open positions. With respect to the remaining two e- mails, this office' s review determined that they do not disclose details of any of the candidates' applications or personally-identifying information; they also do not reveal any deliberations regarding them. instead, the e-mails contain general status updates about the selection process .

The City did not demonstrate that these commun ications are highly personal in nature or that their disclosure would constitute a clearly unwarranted invasion ofpersonal privacy. Accordingly, this office concludes that the City did not show by clear and convincing evidence that those two transitory e-mails are exempt from disclosure pursuant to section 7(1 )( c ).

This office requests that the City provide- with a copy ofMr. Boone's application materials, subject to permissible redactions under section 7(l)(b) ofFOIA.9 This office also requests that th e C ity provide copies of the last two e- mail chains that were provided for this office's confidential review. The City may redact parts ofthe e-mail chains that do not pertain to the police chief selection process .

The Public Access Counselor has determined that resolution ofthis matter does not require the issuance ofa 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.

Supervising Attorney Public Access Bureau 76460 f 7 1c proper improper mun