Champaign County Executive's Office properly withheld draft ads under 7(1)(f)

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Dear and Ms. Jett:

This determination letter is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2023 Supp.)). For the reasons that follow, the Public Access Bureau concludes that the Champaign County Executive' s Office (County) did not improperly deny draft versions of advertisements in response to FOIA request.

On October 4, 2024, submitted a FOIA request to the County seeking copies of "[ a[ll emails, memorandum, texts or other communication from Steve Summers or Michelle Jett or their subordinates from 1/1/2024 to current with any vendors involved with campaign ads over the public safety sales tax[ ]" and "[ c]opies of all advertisements, billboard, print, radio or otherwise the county has produced or has had produced by third-parties in regards On November 7, 2024, this office forwarded a copy of the Request for Review to the County and asked it to provide this office with unredacted copies of the requested records together with a detailed explanation for the applicability of the section 7(1)(f) exemption. On November 19, 2024, the County provided this office with copies of the responsive materials, including the records provided to a written response, and three withheld videos of television advertisements concerning a sales tax. The County informed this office that after alleged that the first production was incomplete, it undertook an additional review and identified two responsive spreadsheets that were furnished to on November 19, 2024. On that same date, noted receipt of the two spreadsheets. 3 On November 20, 2024, this office forwarded a copy of the County' s redacted response to 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." 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v. Illinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body " has the burden of proving by clear and convincing evidence" that a record is exempt from disclosure. 5 ILCS 140/1.2 (West 2022).

Request for Review alleges that the County improperly withheld television advertisements that " were fully produced and as far as I can tell, paid for. They are no longer preliminary drafts, it's a finished product." 4 In its response to this office, the County characterized the withheld advertisements as drafts that were not finalized and never used even though the producer was paid for its services. In an e-mail to this office on December 5, 2024, the County further stated that "[ i]f the County decided tomorrow to use them as their intended purpose, they would have to be edited further before doing so." 5 In United States Fish and Wildlife Service vs. Sierra Club, 592 U.S 261 (2021), the United States Supreme Court addressed whether written opinions regarding a proposed federal agency action were drafts within the scope of the exemption in Federal FOIA that corresponds to section 7(1)(f).6 The opinions, which concluded that a proposed rule was likely to adversely affect endangered species, were not approved or submitted to the Environmental Protection Agency ( EPA). Sierra Club, 592 U.S at 265. Instead, the decisionmakers who reviewed the drafts concluded " that 'more work needed to be done,'" and " shelved the draft opinions and agreed with the EPA to extend the period of consultation." Sierra Club, 592 U.S at 265. The Court rejected the argument that the opinions constituted a final decision because they were not followed by another version that was adopted, holding that the opinions were " both predecisional and deliberative." Sierra Club, 592 U.S at 272-73. The Court emphasized that the determinative fact is not their level of polish— it is that the decisionmakers at the Services neither approved the drafts nor sent them to the EPA." Sierra Club, 592 U.S at 271-72; see also Heffernan vs. Azar, 417 F Supp. 3d 1, 17 (D.D.C 2018) ( draft of press release that was not issued Likewise, the versions of advertisements at issue were not among the versions that were approved for release and if they were, the final product would have been different, according to the County. Even though completed versions of the videos were submitted and no additional editing was done, the unadopted versions of the advertisements are preliminary drafts that provide insight into the County' s predecisional deliberative process of formulating advertisements. Accordingly, this office concludes that the County did not improperly withhold the videos under section 7(1)(f) of FOIA.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter serves to close this matter. If you have any questions, please contact me at the Chicago address on the first page of this letter.

Very truly yours, MATTHEW C. ROGINA Senior Assistant Attorney General Public Access Bureau 83737 f 71f proper co