David W. McArdle

Tuesday, November 13th, 2018

A Public Body May Not Discuss Duties of an Elected Official in Closed Session When It Cannot Remove that Official from Office

In October, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 18-015 in which it stated its position that the 2(c)(1) exception of the Illinois Open Meetings Act (OMA) authorizing closed session to discuss “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body” does not apply to elected officials. Furthermore, the 2(c)(3) exception of OMA authorizing closed session to discuss “the discipline, performance or removal of the occupant of a public office” only applies when the public body has the power under the law to remove the occupant of that office.

The PAC opinion arose from a request for review from the McClean County Auditor complaining that the Finance Committee of the McClean County Board improperly entered closed session during its June 6, 2018, meeting, citing the exception in 2(c)(1) of OMA, to discuss the duties and salaries of the county auditor and the county coroner.

First, the PAC determined that the holders of the elected public offices of county auditor and county coroner are not employees under the definitions of “public offices” and “employee” in section 2(d) of OMA. To reach this determination, the PAC noted that an individual cannot simultaneously be both a public officer and an employee of a public body. The offices in question were created under the Illinois Constitution of 1970, and the occupant of the offices hold some portion of the sovereign power of the State. They are therefore public officers. Furthermore, the PAC explained that neither does the county hold an employer-employee relationship with the county auditor and county coroner under common law. While the county may set the compensation for these county officers and determine the budgets of their offices, it may not direct and control their work nor may it terminate them based on their performance. Because the county auditor and county coroner are not employees, the 2(c)(1) exception does not apply to them.

Next, the PAC determined that neither does the 2(c)(3) exception apply to the public officers in question. The plain language of this exception allows for closed session to discuss the performance of county officials only if the public body has the authority to remove the officials under law or ordinance. The McClean County Board’s Finance Committee possessed no such authority.
Accordingly, the PAC ordered the release of the applicable closed session minutes and verbatim recording from the June 6 meeting.

This opinion serves as a reminder that closed sessions may only be used to discuss employment matters relating to specific individuals who are clearly employees of the public body in question. Closed session may not be used to discuss public officials the public body has no legal authority to remove from office.


David W. McArdle

Author: David McArdle, Matt Marcellis

Thursday, November 1st, 2018

PAC Opinion Underscores the Importance of Having a Factual, Articulable Basis for Denying a FOIA Request as Unduly Burdensome

In October, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 18-013 which reiterated the elements of the test for undue burden laid out in section 3(g) of the Illinois Freedom of Information Act (FOIA).

This PAC opinion arose from a July 2018 FOIA request to the Office of the Governor from news outlet One Illinois seeking e-mails pertaining to nominations for appointment to any of thirteen specific boards, councils, and commissions and any of the Boards of Trustees for the State’s public Universities. The request also sought documents prepared by or in the possession of seven individuals pertaining to nominations for appointment to the organizations identified. The Governor’s Office replied that the request would be unduly burdensome pursuant to section 3(g) of FOIA and requested that One Illinois narrow its request.

One Illinois did narrow its request, but the Governor’s Office again denied the request as unduly burdensome as its initial search yielded 44,536 potentially responsive emails. Upon this second denial, One Illinois sent a request for review to the Public Access Bureau. After investigating the matter, the PAC issued an opinion which concluded that the Governor’s Office violated the requirements of FOIA and directed it to provide One Illinois with copies of the requested e-mails, subject to appropriate redaction.

As an initial matter, the PAC determined that the Governor’s Office’s initial search was not “a reasonable search tailored to the nature of a particular request” using search terms that are reasonably calculated to locate all responsive records. A subsequent search which contained the term “appoint,” was a more appropriate search criteria and identified only 1,783 potentially responsive emails.

Section 3(g) of FOIA provides: “Requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information.”

The Governor’s Office stated that compliance with Mr. Cox’s request would require it to review the e-mails identified in its search individually to determine responsiveness and whether any exemptions may apply. The Governor’s Office, however, did not provide a specific factual basis to support its claim that conducting such a review of the 1,783 potentially responsive emails would unduly burden the Governor’s Office’s operation.

Furthermore, the Governor’s Office did not demonstrate that the burden of reviewing and redacting the responsive e-mails would outweigh the significant public interest in the records. The e-mails concerned the appointment of individuals to State organizations that created and exerted influence over a wide range of public policies relating to the State’s receipt and use of public funds.

This opinion underscores the importance of the test for undue burden laid out in section 3(g) of FOIA. A public body seeking to deny a FOIA request must be prepared to demonstrate why compliance with the request would constitute an undue burden to that public body’s operations. Furthermore, the public body must also articulate why that burden outweighs the public interest in the requested records.


David W. McArdle

Author: David McArdle, Matt Marcellis

Tuesday, September 4th, 2018

General Information Related to Public Duties in Settlement Agreements Not Excludable Under FOIA

In August 2018, the Office of the Attorney General published Public Access Opinion 18-010 which emphasized that information regarding claims against a school district stated in broad, general terms and that was related to a public employee’s public duties was not exempt from disclosure under the Illinois Freedom of Information Act (FOIA).

The Attorney General (AG) published this opinion in response to a case where the Illinois Education Association (NEA) submitted a FOIA request to the Arbor Park School District No. 145 seeking copies of records that pertained to the settlement agreement between the District and one of its former principals. The Department provided records but redacted information on the claims the principal could potentially bring against the District, as “an unwarranted invasion of personal privacy” under FOIA Section 7(1)(c).

The AG confidentially reviewed an unredacted copy of the agreement and found that the redacted information described the principal’s allegations and potential claims against the District in only broad, general terms. Furthermore, the redacted portions did not provide any details of the circumstances or events giving rise to the principal’s allegations, nor did it name any individuals or describe any specific conduct. Finally, the AG found that the redacted portions of the agreement bore on one or more public employees’ public duties.

Most importantly, the opinion cites a four-factor test for determining if the release of otherwise personal information contained in public records constitutes a “clearly unwarranted invasion of personal privacy” under FOIA section 7(1)(c). The factors to be weighed are as follows: 1) the requestor’s interest in disclosure, 2) the public interest in disclosure, 3) the degree of invasion of privacy, and 4) the availability of alternative means of obtaining the requested information. For the reasons cited above, the AG determined that the factors weighed definitively in favor of disclosure.

The result of this opinion is that information contained in settlement agreements, if broached in broad, general terms and devoid of overly personal details, and which definitely bears on the public duties of a public employee, cannot be exempted from FOIA requests under section 7(1)(c).


David W. McArdle

Author: David McArdle, Matt Marcellis

Tuesday, July 31st, 2018

Illinois Appellate Court Clarifies FOIA Undue Burden Exception

In a July 2018 ruling, an Illinois appellate court clarified the requirements for claiming a section 3(g) undue burden exception under the Illinois Freedom of Information Act (FOIA). The case involved a FOIA request for various pieces of non-personal identifying demographic information contained in a community college’s databases.

To claim a section 3(g) exemption under FOIA, the public body must show the following:

  • Compliance with the record request represents an undue burden.
  • There is no way to narrow the request.
  • The burden outweighs the public interest in disclosure.

Any exception to FOIA must be read narrowly. Additionally, a FOIA “request that is ‘overly broad and requires the public body to locate, review, redact and rearrange for inspection a vast quantity of material that is largely unnecessary to the [requestor’s] purpose’ constitutes an undue burden.”

In overturning the grant of the college’s motion to dismiss, the Court re-considered testimony offered at a lengthy evidentiary hearing. First, the college’s Chief Information Officer had testified that retrieval of the requested information would take at least a week for each of the seven pieces of requested information, totaling more than 150 hours, if employees performed the task in conjunction with their normal duties. Additionally, the requestor testified that he was seeking the information in his role as parking chairman of Aurora Downtown, a taxpayer funded oversight committee. The city had invested approximately $45 million in the college’s downtown campus in the form of incentives and preferential treatment, and the requestor wanted to study whether the college was prioritizing programs that pushed students away from the new downtown campus to a secondary campus in Sugar Grove.

In examining the trial court’s findings of fact, the Court determined that the trial court had erred in how it considered the length of time it would take college personnel to comply with the request. The Court held that only the amount of time it would take to comply with the request, separate from regular duties, was relevant. The college’s Chief Information Officer testified that each of the seven requests would take approximately one full day to complete if an employee focused on the task exclusively. Therefore, the appropriate amount of time to consider relative to undue burden was 56 employee hours, not the “over 150” mentioned in the trial court’s ruling.

Next, the Court noted that the trial court had failed to make a finding on whether there was any way to narrow the request. The trial court had addressed an important threshold question associated with this element in that the college had offered the requestor an opportunity to narrow his request. However, it had failed to determine whether the request could, in fact, be narrowed.

Finally, the Court held that the trial court had erroneously minimized the public interest value of the requested information. The trial court had characterized the requested demographic information as an attempt to “speculate about what businesses that the students might frequent.” The Court, however, found that the request carried more public interest weight as it was an attempt to examine the benefits of Aurora’s investment in the college’s downtown campus. The Court likened this to the significant public interest in how tax dollars are spent, finding that the requestor’s actions were in accord with his role in Aurora Downtown and its mission to promote local business and economic development.

In conclusion, the Court made three important holdings regarding the section 3(g) FOIA exception. First, in determining an undue burden, the court should consider the time necessary to comply with the FOIA request alone, not in conjunction with employees’ regular duties. Next, a court must determine whether the request can be narrowed, not simply address the threshold question of whether the public body had offered the requestor the opportunity to narrow the request. Finally, there is a significant public interest in examining how a public investment is benefitting the investing city.


David W. McArdle

Author: David McArdle, Matt Marcellis

Wednesday, July 25th, 2018

Property Index Numbers are not Excludable Under FOIA

In June 2018, the Office of the Attorney General published Public Access Opinion 18-009 which emphasized that property index numbers were not exempt from disclosure under the Illinois Freedom of Information Act (FOIA).

The Attorney General (AG) published this opinion in response to a case where an attorney submitted a FOIA request to the City of Chicago Department of Business Affairs and Consumer Protection seeking a list of all properties that had been granted a Commissioner’s Adjustment. The attorney requested that property index numbers be included in the response. The Department provided records, but redacted the property index numbers, claiming they were exempt as “private information” under Section 7(1)(b) of FOIA, or, in the alternative, as “an unwarranted invasion of personal privacy” under Section 7(1)(c).

The opinion points out that a property index number identifies a specific parcel of property, not an individual. Furthermore, they are readily available to the public on governmental websites and are subject to public inspection by statute and therefore are not private information. The fact that a property index number could be used to more readily seek out the identity of the owner did not sway the AG, who reasoned that “the fact that a person can combine various available pieces of information to ultimately identify otherwise exempt information does not render that information exempt from disclosure.” Additionally, the release of property index numbers is not an unwarranted invasion of personal privacy since the numbers are readily available and since there was a substantial public interest at stake in this case, namely ensuring that the adjustments at issue were being granted equitably.

Most importantly, the opinion cites a four-factor test for determining if the release of otherwise personal information contained in public records constitutes a “clearly unwarranted invasion of personal privacy:” 1) the requestor’s interest in disclosure, 2) the public interest in disclosure, 3) the degree of invasion of privacy, and 4) the availability of alternative means of obtaining the requested information.

The result of this opinion is that property index numbers, and likely many other types of personal identifiers that do not identify individuals directly or that can be combined with other readily available information to identify individuals, cannot be exempted from FOIA requests.


David W. McArdle

Author: David McArdle, Matt Marcellis

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

Friday, November 13th, 2015

Illinois House Passes Bill Allowing for Release of Municipal Funds

This week, the Illinois House of Representatives passed a bill allowing for the release of funds owed to municipalities. Specifically, the Bill makes appropriations to the Department of Transportation from the Motor Fuel Tax Fund for specified payments to local governments. The Bill also makes appropriations to the Illinois Gaming Board from the State Gaming Fund for distributions to local governments for admissions and wager tax, including prior year costs. Additionally, the Bill also allows for distributions of funds for lottery and emergency service fees.

The Bill passed the House by an overwhelming bipartisan majority, 115 Yeas to 1 Nay.

While this Bill is only a piecemeal release of funds, its passage could bring significant relief to cash-strapped municipalities.

The Bill next moves on to the Illinois Senate, but it is doubtful that there will be any further action before the end of the year as the Senate does not reconvene until January.

We will continue to provide updates on these and other relevant issues as they transpire.


David W. McArdle

Authors: David McArdle, Jacob Caudill

 

Friday, October 30th, 2015

New PAC Opinion Finds Governor Rauner’s Calendar To Be A Public Record

Last month, the Illinois Attorney General’s Office released a Public Access Opinion indicating that the Governor’s Office improperly redacted information from a Freedom of Information Act (FOIA) request. Specifically, the Public Access Opinion found that Governor Rauner’s calendar, which was shared by way of Microsoft Outlook between himself, his personal assistant, and senior staff, was subject to a FOIA request.

The request in question sought documents showing “Gov. Bruce Rauner’s appointments from April 1, 2015 to May 14, 2015. The record *** should include the times and dates of any and all meetings and functions attended by the governor as well as, in the event of meetings, the names and titles of meeting attendees.” In response to this request, the Governor’s Office submitted a redacted version of his calendar.

In its opinion, the Attorney General’s Office found that based on the description of the calendar submitted by the Governor’s Office it was a public record. Notably, the calendar was prepared and maintained by a state employee, accessible to senior staff through the State’s email system, and used to organize the Governor’s time.

Additionally, the Attorney General found that all of the redacted entries on this public record appeared to pertain to public business, as opposed to private affairs or private business interests, and as such were subject to FOIA. Moreover, the Attorney General also found that the Governor’s Office failed to demonstrate by clear and convincing evidence that any portion of the responsive records fell within the FOIA disclosure exemptions. Section 7(1)(f) and 7(1)(m) pertain to documents that express opinions and the attorney client privilege, respectively.

Municipalities should therefore be aware that any calendars used for scheduling, even if only dispersed to a limited number of people, could be subject to a FOIA request.


David W. McArdle

Authors: David McArdle, Jacob Caudill

Monday, August 17th, 2015

Federal Appellate Court Finds Panhandling Ordinance Unconstitutional

Recently, a federal appellate court determined that an Illinois municipality’s anti-panhandling ordinance was unconstitutional. Specifically, the ordinance in question prohibited panhandling in the municipality’s “downtown historic district.” The area in question only constituted two percent of the municipality, but contained the principal shopping, entertainment, and governmental areas. In prohibiting panhandling, the ordinance defined the act as an oral request for an immediate donation. However, signs requesting money are allowed, along with oral pleas for donations at a later time.

At issue in this case was whether the ordinance was valid as a content-neutral regulation of speech. In answering in the negative, the federal appellate court relied on a recent United States Supreme Court case dealing with the First Amendment, Reed v. Town of Gilbert. Previously, courts have interpreted unconstitutional content-based regulations in two areas: (1) a regulation that restricts speech because of the idea it conveys, and (2) a regulation that restricts speech because the government disapproves of its message. Under this old standard, the appellate court found that the municipality’s ordinance was valid, as it only regulated the subject matter rather than content or viewpoint.

However with Reed, the Supreme Court held that the “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” It further went on to state that “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints with that subject matter.” The federal appellate court further stated that the effect of Reed was an eradication of any distinction between content regulation and subject matter regulation.

In holding the municipality’s panhandling statute to be unconstitutional, the appellate court determined that the ordinance was an invalid subject matter regulation pursuant to the principles in Reed. Specifically, the appellate court held that “[a]ny law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.” Because the parties stipulated that the issue rested with the content neutrality of the ordinance, the appellate court did not even address whether a “compelling justification” existed.

As a result, municipalities should express caution whenever passing an ordinance that regulates the subject matter of speech.


David W. McArdle

Authors: David McArdle, Jacob Caudill

Wednesday, April 22nd, 2015

Informal Approval of Settlement Agreement by City Council Is Unenforceable

An appellate court, in Meade v. City of Rockford, recently held that a settlement agreement, informally approved by a city council, was unenforceable despite a court having dismissed the case pursuant to the settlement. In coming to this resolution, the court answered three questions on appeal: Are litigation settlements excluded from the statutory (65 ILCS 5/3.1-40-40)requirement that city councils approve the passage of any resolution creating a liability against a city for the expenditure of money?; Are members of city councils required to vote consistently with their past approval of authority for the city attorney to make a settlement offer?; Is the parties settlement agreement enforceable against the municipality notwithstanding the city council’s subsequent vote to not approve the settlement? The court answered all three questions in the negative.

In Meade, a settlement was reached between the municipality and injured plaintiff the day before trial. During negotiations, five members of the city council gave their approval to the city attorney to settle the issue for $600,000. Subsequently, when the settlement was to be approved by the city council, two of the city council members who had previously approved the agreement changed their vote resulting in the settlement not being approved. Thereafter, the plaintiff brought suit to enforce the agreement.

Not surprisingly, the court held that litigation settlements are an expenditure of money that statutorily requires an approval of the city council. Further, the court held that they would not adopt a rule requiring city council members to vote consistently with their previous statements (however, the court did leave the trial court to determine whether the city council’s conduct was sanctionable). Finally, the court held that the previous settlement agreement was unenforceable because of the statutory requirement for city council approval.

As a result of this case, city council members should be advised that any settlement agreements that occur without the approval of the council may be unenforceable and could result in sanctions.


David W. McArdle

Authors: David McArdle, Jacob Caudill