Village of Hanover Park improperly withheld business lease agreements under 7(1)(g)

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Dear and Ms. Clark:

This determination letter is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA). 1 For the reasons that follow, the Public Access Bureau concludes that the response by the Village of Hanover Park (Village) to July 3, 2023, FOIA request violated the requirements of FOIA.

On July 3, 2023, submitted a FOIA request to the Village seeking, in relevant part, "[ c]opies of all leases that were submitted to the City of Hanover Park to obtain business or remodeling licenses for [designated addresses]. ( Since 2020)." 2 On July 25, 2023, On August 10, 2023, this office sent a copy of the Request for Review to the Village 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 FOIA exemptions it asserted. On August 11, 2023, the Village provided the requested materials. On August 18, 2023, this office forwarded a copy of the Village' s response to with an opportunity to reply; he did not reply.

DETERMINATION

All records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS 140/1.2 (West 2022). Section 7(1)(g) of FOIA, exempts from disclosure:

Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested. ( Emphasis added.)

For a record to be exempt from disclosure under section 7(1)(g):

T]he document must contain ( 1) a trade secret, commercial, or financial information, ( 2) that was obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are either ( a) proprietary, ( b) privileged, or (c) confidential, and (3) that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business. ( Emphasis in original.) Chicago v. Janssen Pharmaceuticals, Inc, 2017 IL App (1st) 150870, ¶ 27.

In its response to this office, the Village clarified that the business owner who submitted the application and lease at issue " questioned as to why we were requesting a copy of his lease as part of the business license application process" and " noted that he considered his lease agreement as personal and confidential[.]" 4 Based on the business owner' s concerns, the Village stated that it denied request for the lease pursuant to section 7(1)(g) of FOIA.

Although the business owner may have submitted the lease under the assumption that it would be maintained confidentially, the plain language of section 7(1)(g) also requires a public body to show that disclosure of the records would result in competitive harm. The Village did not address the issue of competitive harm, nor is it apparent to this office how disclosure of what appears to be a standard form commercial lease would result in competitive harm to the business owner. Accordingly, this office concludes that the Village improperly withheld the lease agreement in its entirety. This office requests the Village provide a copy of the lease, subject only to appropriate redactions of signatures pursuant to section 7(1)(b) of FOIA. 5 Ill. Att'y Gen. PAC Req. Rev. Ltr. 46798, issued March 16, 2017 ( signatures are a form of private information" that may be withheld pursuant to section 7(1)(b)).

Very truly yours, Victoria Frazier VICTORIA FRAZIER Assistant Attorney General Public Access Bureau 77566 f 71g improper mun