Monday, February 19th, 2018

Attorney General Releases First PAC Opinion of 2018

The Office of the Attorney General recently released Public Access Opinion 18-001, which looked at whether a municipality violated the Freedom of Information Act (FOIA) by redacting portions of an email sent by the Village President.

A radio station sought a copy of the resignation letter delivered by a former Village President. The resignation was sent in an email addressed to the Village Trustees and Village Clerk, at their Village email addresses. In the email, the Village President addressed his final decision to resign from office, which included his opinion concerning the circumstances behind his decision.

The Village raised two arguments in support of its decision to redact, (1) Section 7(1)(f) of FOIA and (2) Section 7(1)(n) of FOIA.

Section 7(1)(f) of FOIA protects preliminary records reflecting the opinions that public officials form while creating government policy. The Village claimed an exemption under this provision when it responded to the Office of the Attorney General, stating that the redaction contained an opinion expressed that is not final policy of the Village. The Office of the Attorney General determined that although the resignation contained the Village President’s opinion, it was not expressed as part of a deliberative or decision-making process, rather, it represented a single and final communication concerning his tenure as Village President. Therefore, the Village was not exempt from disclosure.

Section 7(1)(n) of FOIA exempts from disclosure records relating to a public body’s adjudication of employee grievances or disciplinary cases. The Office of the Attorney General held that because the Village failed to identify an ongoing-to-contemplated employee grievance, complaint, or disciplinary action that was or would be adjudicated, the redacted portion could not be considered related to “adjudication.” Again, the Office of the Attorney General found that the resignation was created and sent for purpose of explaining the reasons for the resignation, and was not exempt from disclosure.

In sum, the Office of the Attorney General found that the resignation was not exempt under 7(1)(f) because the opinions expressed were final, and not part of a deliberative process to formulate Village policy. Likewise, the Village was not exempt under 7(1)(n) because the Village failed to carry its burden in demonstrating an active adjudication regarding the employee grievance.


Author: Dave Noland