Will County Division of Transportation improperly redacted email under 7(1)(f) deliberative process exemption

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 Mr. Catalano:

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 Will County Division of Transportation ( Division) to August 14, 2024, FOIA request violated the requirements of FOIA.

On that date, submitted a FOIA request to the Division seeking, in relevant part, "[ a]ll correspondences/ communications/ emails between [ the Division] & K-Five that resulted in the scheduling and coordination of curb/gutter removal & replacement in front of specified address]." 2 On August 20, 2024, the Division partially denied request On October 1, 2024, this office sent a copy of the Request for Review to the Division 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 October 3, 2024, the Division provided a response and the withheld record. On October 8, 2024, this office forwarded a copy of the Division' s response to with an opportunity to reply; she replied later the same day.

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)(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." 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 v. McDonough, 344 Ill. App. 3d 242, 248 (2003). " The government is entitled to withhold documents that reflect the agency' s give-and-take leading up to its final decisions." Chicago Tribune Co. v. Cook County Assessor' s Office, 2018 IL App (1st) 170455, ¶ 29.

Section 7(1)(f) of FOIA also extends 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 determining whether third-party communications fall within the scope of the deliberative process exemption, courts look " to whether the third party 'functioned ' enough like' [the agency' s] own personnel'; ' worked side-by- side' with the agency to address the same ' fundamental concern'; or were 'on the same team.'" New York Times Co. v. United States DOJ, 2021 U.S. Dist. LEXIS 20776, at * 51 (S.D.N.Y. Feb. 3, 2021) ( quoting Fox News Network, LLC v. U.S. Department of Treasury, 739 F. Supp. 2d 515, 540 (S.D.N.Y. 2010) ( quoting DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 12 2001))). For communications with a third party to qualify under the 7(1)(f) exemption, the third-party " may not represent independent interests of its own apart from those of the agency."

In its response to this office, the Division explained that an employee from K-Five Construction Company sent the withheld e-mail to a Division employee. The Division argued that the K-Five employee' s e-mail is exempt because the individual " expressed his opinion about ongoing construction activities." 4 In her reply, stated the individual " is not a government worker— he is a construction project manager for K-five construction." 5 further noted that the construction company " was awarded ( and completed) [ a contract with the Division] for the construction work noted in the email." 6 This office's review of the disclosed and redacted e-mails indicates that in the context of the relevant e-mails, the interests of the Division and K-Five are not aligned. The unredacted e-mails disclosed to reflect that the Division asked K-Five to consider returning to the area of driveway to perform additional roadwork to improve drainage concerns. K-Five stated that " once scheduled, we will perform removals and replacements as directed by the County ( Steve). We will require a sign off from the County, that subsequent to these revisions, K5 will have no more liability and or responsibility to perform any additional work in and around this property. It is with this understanding, that we will proceed." 7 Rather than a deliberation between a public body and its consultant as to the public body's next steps, the e-mail chain reflects the back and forth between a contractor and the Division trying to come to a mutual agreement, with both entities seeking to protect their own interests. Because the construction company' s interests do not represent the interests of the Division in this instance, the section 7(1)(f) exemption does not apply. Accordingly, the Division' s response to August 14, 2024, FOIA request violated FOIA. This office requests the Division provide with an unredacted version of the responsive record.

Very truly yours, VICTORIA FRAZIER Assistant Attorney General Public Access Bureau 83108 f 71f improper co