Monday, June 18th, 2018

Attorney General Issues Fifth PAC Opinion of 2018

In March 2018, the Office of the Attorney General published Public Access Opinion 18-005 which clarified the standard public bodies must meet when claiming certain employee information is exempt from disclosure under the Illinois Freedom of Information Act (FOIA). The opinion emphasizes that a 2010 amendment to the FOIA has replaced per se exemptions with a balancing test that requires a public body to weigh an employee’s right to privacy in information contained in public records against the public interest in obtaining such information. Furthermore, disclosure of information that bears on an employee’s public duties is not an invasion of privacy.

The AG published this opinion in response to a municipality (the “City”) denying a FOIA request in November 2017 for records of City employees’ wages and salaries. FOIA section 2.5 provides that “[a]ll records relating to the . . . use of public funds . . . are public records subject to inspection and copying by the public.” In denying the request, the City cited FOIA section 7(1)(c) which exempts from disclosure “[p]ersonal information contained within public records the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Section 7(1)(c), however, specifically states that “the disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” In arguing that compensation information is personal in nature and has no bearing on public duties, the City cited Stern v. Wheaton-Warrenville Community Unit School District No. 150 and Copley Press, Inc. v. Board of Education for Peoria School District No. 150.

The AG points out, however, that both Stern and Copley Press involved Illinois courts interpreting a version of the personal privacy exemption that has since been amended. Under the prior statutory language, any records, including wage and salary information, that fell within any of the subsections enumerated in the exemption were per se exempt from disclosure. One of the subsections was personnel files, meaning that if wage and salary records were maintained in personnel files, it was exempt. Effective January 1, 2010, that section of FOIA was replaced with section 7(1)(c) which no longer permitted an exemption simply because a record was maintained in a personnel file, but required a public body to demonstrate that the employee’s “right to privacy outweighs any legitimate public interest in obtaining the information.”

Effectively, the General Assembly replaced per se exemptions with a balancing test. The four factors that administrative agencies and the court must balance are: “(1) the [requester’s] interest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative means of obtaining the requested information.” In the case addressed by the opinion, the AG found that the City clearly failed to meet its burden of demonstrating by clear and convincing evidence that the requested records were exempt.

The result is that public bodies face a high hurdle if they wish to exclude from FOIA requests records related to employees’ public duties.


David W. McArdle

Author: David McArdle, Matt Marcellis