City of Centralia properly withheld business records under 7(1)(b), 7(1)(m), and 7(1)(q)

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Dear and Ms. Enke:

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.)).

On March 22, 2025, submitted a FOIA request to the City of Centralia ( City) seeking records related to business transfer verification, tobacco licensing and enforcement, and the City's enforcement plan for a business located at a specified address. On March 28, 2025, the City granted the request in part and denied it in part pursuant to sections 7(1)(b), 7(1)(m), and 7(1)(q) of FOIA.1 On April 1, 2025, submitted the above- referenced Request for Review contesting City's response. Specifically, he contested the City's partial denial of his request and the adequacy of the City's search for responsive records.

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).

Reasonable Search When presented with a FOIA request, a public body is required to conduct a reasonable search tailored to the nature of [that] particular request." Campbell v. U.S. Department of Justice, 164 F.3d 20, 28 ( D.C. Cir. 1998). Whether a particular search is reasonable depends on the specific facts and is judged on a case-by-case basis. Better Gov't Ass' n v. City of Chicago, 2020 IL App ( 1st) 190038, ¶ 31. The crucial issue is whether the search was reasonably calculated to discover the requested documents. Better Gov't Ass'n, 2020 IL App ( 1st) 190038, ¶ 31. Speculation that records may exist does not " undermine the reasonableness of the agency's search[.]" Moore v. F.B.I., 366 Fed. Appx. 659, 661 (7th Cir. 2010).

In its response to this office, the City explained that tobacco licensing applications are submitted to the Clerk's office, licenses are issued and revoked by the Mayor, and the Police Department investigates compliance. The Clerk' s office maintains the application records in paper files by year of issuance, business name, and address, which the Clerk confirmed searching in response to this FOIA request. The City further stated that the Clerk searched for responsive e-mails using the business address and e-mail address of the applicant. The City also confirmed that the Mayor and Police Department performed searches but found no additional records responsive to this FOIA request. In his reply, speculated that additional enforcement records should exist because similar businesses, which he alleges are connected to the subject business, have recently lost licenses.

Section 7(1)(b) of FOIA Section 7(1)(b) of FOIA exempts from disclosure "[ p]rivate information, unless disclosure is required by another provision of this Act, a State or federal law or a court order." Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2023 Supp.)) defines "private information" as:

U]nique identifiers, including a person's social security number, driver' s license number, employee identification number, biometric identifiers, personal financial information, passwords or other access codes, medical records, home or personal telephone numbers, and personal email addresses. Private information also includes home address and personal license plates, except as otherwise provided by law or when compiled without possibility of attribution to any person. ( Emphasis added.)

In its response, the City explained that it redacted personal telephone numbers, personal e-mail addresses, and home addresses of the officers of a corporation. This office's confidential review of the unredacted records confirmed the City's description of the redacted private information.

In his reply, argued that the City should not have redacted this information because it pertains to "corporate actors, not private citizens. The public has a clear interest in learning whether the same individuals— previously sanctioned— are simply repackaging under new names." 2 explained that he wished to compare the officers of this business against the officers of previous businesses that had had licenses revoked. However, "private information" is exempt from disclosure under the plain language of section 7(1)(b) " unless disclosure is required by another provision of this Act, a State or federal law, or a court order." When an individual uses a home address, personal e-mail address, or personal Section 7(1)(m) of FOIA Section 7(1)(m) of FOIA exempts from disclosure:

Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.

Communications protected by the attorney- client privilege are within the scope of section 7(1)(m). People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 (1997). A party asserting that a communication to an attorney is protected by the attorney- client privilege must show that: "(1) a statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential." Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 2006). Moreover, "[ t]he privilege applies not only to the communications of a client to his attorney, but also to the advice of an attorney to his client." In re Marriage of Granger, 197 Ill. App. 3d 363, 374 ( 1990); see also People v. Radojcic, 2013 IL 114197, ¶ 40 ("[ T]he modern view is that the privilege is a two-way street, protecting both the client's communications to the attorney and the attorney' s advice to the client."). A public body that withholds records under section 7(1)(m) "can meet its burden only by providing some objective indicia that the exemption is applicable under the circumstances." ( Emphasis in original.) Illinois Education Ass' n v. Illinois State Board of Education, 204 Ill. 2d 456, 470 (2003).

In its response to this office, the City stated that it withheld correspondence with the City Attorney regarding the application specified in the FOIA request, as well as additional correspondence with the City Attorney. In his reply, alleged that the City's The redacted version of the e-mails provided to plainly shows that the communications occurred between the City Attorney and the Mayor and Clerk on behalf of the City. This office' s confidential review of the records confirmed that they reflect communications in which legal advice was sought, and provided, relating to City business. There is no indication that these communications have been shared with any outside parties that would waive the attorney-client privilege. Accordingly, this office concludes that the City did not improperly redact those portions of the records under section 7(1)(m) of FOIA.

Section 7(1)(q) of FOIA Section 7(1)(q) of FOIA exempts from disclosure "[ t]est questions, scoring keys, and other examination data used to determine the qualifications of an applicant for a license or employment." The Public Access Bureau has previously determined that public bodies may properly withhold certain information collected during the examination, testing, or interview process that could frustrate those processes as " other examination data" under section 7(1)(q). See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 71541, issued February 13, 2022, at 3 (concluding that " other examination data" includes interview questions, as well as " evaluative handwritten and typed notes by interviewers"); Ill. Att'y Gen. PAC Req. Rev. Ltr. 26217, issued July 10, 2014, at 2 (concluding that " test questions, answer sheets, interviewers' notes, rating forms, and other records relied upon to formulate results" of a police sergeants' promotional examination were " within the scope of the section 7(1)(q) exemption."); Ill. Att'y Gen. PAC Req. Rev. Ltr. 40721, issued July 21, 2016 (test scores exempt from disclosure under section 7(1)(q)).

On the other hand, this office has also determined that portions of applications concerning the background of an applicant that do not arise from an examination, testing, or an interview of the applicant do not provide insight into the public body's evaluative process and are therefore outside the scope of the section 7(1)(q) exemption. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 18783, issued March 8, 2013, at 3 ("A background check assesses factual information concerning the applicant' s personal history rather than his or her performance on an examination."); Ill. Att'y Gen. PAC Req. Rev. Ltr. 61662, issued January 22, 2021, at 4 concluding that background investigation results do not fall within the scope of section 7(1)(q) because they "are not test-related information or 'other examination data' that would frustrate the public body' s] applicant testing process if disclosed[.]").

This office' s confidential review of the records withheld pursuant to section 7(1)(q) found that the records are not test questions, scoring keys, or other examination data collected as part of the City's testing or examination process, but are instead routine factual documents regarding the background of an applicant. Disclosure of these records would not frustrate the City's application process. Accordingly, this office concludes that the City has not demonstrated by clear and convincing evidence that these records are exempt pursuant to section 7(1)(q). This office requests that the City provide with copies of those records subject only to permissible redaction of private information pursuant to section 7(1)(b) of FOIA.

The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. This letter shall serve to close this matter. If you have any questions, please contact me at [email protected] or (773) 590-7878.

Very truly yours, BENJAMIN J. SILVER Supervising Attorney Public Access Bureau 86063 f 3a search proper 71b proper 71m proper 71q improper mun