Matteson Police Department properly withheld background check records under 7(1)(f)

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Dear and Commander Murray:

This determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2023 Supp.)).

In a form dated December 19, 2023, submitted a FOIA request to the Matteson Police Department (Department) seeking a copy of any responses from Eagle Sports Range related to his past employment with the company. On January 11, 2024, the Department denied the request pursuant to section 7(1)(f) of FOIA.1 That same day, submitted a Request for Review to the Public Access Bureau challenging the denial.

On January 24, 2024, this office forwarded a copy of the Request for Review to the Department 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 exemption. On

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. Illinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006). A public body that withholds records "has the burden of proving by clear and convincing evidence" that the records are exempt from disclosure. 5 ILCS 140/ 1.2 (West 2022). The exemptions from disclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 ( 1997).

Section 7(1)(f) of FOIA 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 (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. Factual material generally is not within the scope of section 7(1)(f) unless it cannot be reasonably segregated from deliberative material and, therefore, would provide insight into the public body' s decision- making process. State Journal- Register v. University of Illinois Springfield, 2013 IL App (4th) 120881, ¶ 27.

Further, section 7(1)(f) of FOIA has been interpreted as extending to communications between a public body and a third-party consultant when the third party's analyses and recommendations ' played essentially the same part in an agency' s process of deliberation as documents prepared by agency personnel might have done.'" Fisher v. Office of the Illinois Attorney General, 2021 IL App ( 1st) 200225, ¶ 20 (quoting Harwood, 344 Ill. App. 3d at 248).

In its response to this office, the Department asserted that it relied on a previous determination issued by this office in another Request for Review to withhold the response it obtained from Eagle Sports Range related to application. In particular, the Department stated it denied the request " based on the decision in this case that opinions of employment references are exempt under section 7(1)(f)."2 This office's review of the Department's investigation report, specifically the limited part related to Eagle Sports Range, confirmed that the Department withheld information that is deliberative in nature. The information contains the opinions and views of the employer who was consulted concerning which the investigator who compiled the report found to be significant. In reply to this office, asserted that he believed Eagle Sports Range provided false information about him and questioned why he could not obtain this information. He contended "[ t]his is not a confidential informant on a criminal case, it[']s just a background investigation." 3 As discussed above, the section 7(1)(f) exemption is intended to protect the ability of public bodies to have frank and open deliberations before reaching a decision on a matter, such as a decision on hiring. Because disclosure of this information would provide insight into the Department's decision-making process as it evaluated application, this office concludes that the Department did not improperly withhold the information pursuant to section 7(1)(f).

Very truly yours, TERESA LIM Supervising Attorney Public Access Bureau 79727 f 71f proper pd