Ruth Alderman Schlossberg

Thursday, March 26th, 2020

Responding to Small Business Concerns

We will soon know more about the details of the federal emergency aid package, but in the meantime, here are some other reminders of help for small business:

Tax Due Date Extended to July 15, 2020: The IRS has announced that the federal income tax filing due date for 2019 taxes has been extended from April 15, 2020 to July 15, 2020 for most taxpayers with tax liability under $1 million. Tax payments due on April 15, 2020 from all taxpayers – including corporations and individuals — will also be extended to July 15, 2020 without penalties or interest. This extension is automatic and will not require any filing to obtain unless a taxpayer is seeking an extension beyond the new July 15 deadline. According to the IRS, this extended deadline will also apply to estimated 2020 tax year payments that would ordinarily be due on April 15, 2020. Taxpayers are still urged to file before July 15, and the IRS will continue to issue refunds for eligible taxpayers. They estimate an approximate 21 day wait period to receive a refund.  For more information see: https://www.irs.gov/newsroom/tax-day-now-july-15-treasury-irs-extend-filing-deadline-and-federal-tax-payments-regardless-of-amount-owed

Payroll Tax Credits for Small and Midsize Employers:  As previously reported, under the new Federal Families First Coronavirus Response Act (Act), the Federal government has authorized two new refundable payroll tax credits.  According to the IRS, these are meant “to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees.” This tax credit applies to employers with fewer than 500 employees to encourage them to keep employees on the payroll with paid leave for their own health needs or to care for a family member.  The credit will include health insurance costs.  It also applies to self-employed individuals.  The bill exempts certain small businesses from the child-care leave requirement if it would jeopardize the business’ ability to continue.  The bill is intended to let businesses retain and use funds for these purposes that they would otherwise have paid to the IRS for payroll taxes (including withheld federal income taxes and  eligible amounts of the employer and employees share of  Social Security and Medicare taxes equivalent to the amounts paid in qualified expenses ).    Further guidance on this is expected to be released this week.  The IRS will post additional information about this on its website at:   Coronavirus Tax Relief on IRS.gov.

Other Resources to help small and local businesses respond to the economic challenges posed by this pandemic?  Check out:

The US Chamber of Commerce: https://www.uschamber.com/coronavirus?es_p=11251762

MainStreet.org: https://www.mainstreet.org/howwecanhelp/resourcecenter/covid19resources

Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Thursday, March 26th, 2020

Conducting Remote Meetings During the COVID-19 State of Emergency

Governor’s Pritzker’s March 16 Executive Order 2020-07 that allowed for remote attendance for public meetings raises new questions about how best to comply with the Open Meetings Act when holding remote meetings at which all members are attending remotely.

The Public Access Counselor’s Guidance http://foia.ilattorneygeneral.net/pdf/OMA_FOIA_Guide.pdf on this Executive Order has offered some direction on that issue. They have encouraged public bodies to provide some kind of digital access for the public to meetings such as video, audio or telephonic attendance, and to  continue to provide for public comment by some sort by remote access, as well as by email or other written submissions that could be read at public meetings. Many public bodies are now exploring and experimenting with group conference capabilities that allow the public to listen to the public meetings or observe them.

Here are some of the suggestions and practices to hold successful remote meetings in a manner compliant with the Open Meetings Act and the Governor’s Executive Order.

  • Do not forget about public notice requirements. Those are unchanged.
    • You still need to let the public and any news media have requested it know about your meetings.
    • For regular meetings, the Open Meetings Act requirement to post the agenda 48 hours in advance at the principal office of the public body does not appear to have been waived (but in our opinion, ideally this should only be done if it can be done safely, although neither the law nor the guidance state as much).
    • Since remote meetings will be taking place in cyber-space, the requirement to post at the place where the meeting will be held for regular meetings would appear to require website and social media posting instead of physical posting regardless of whether you maintain a full-time staff to maintain the website.
    • For bona fide emergency meetings, the 48-hour notice requirements of the Open Meetings Act may be shortened. A strict reading of the Act suggests that the physical posting requirement also do not apply (although you are required to let all news media that has asked for notice to know about any emergency meeting). It will, however, be a best practice to post notice of such emergency meetings on your website or social media.
  • Do not forget about public comment.
    • The requirement to provide for public comment at public meetings has not been waived. However, public bodies need to use creativity to find ways to accommodate this requirement for purely remote meetings.
    • How a public body accommodates public comment will, of course, depend on the method the body uses to hold its remote meetings. In some instances, the public may be easily able to listen on the phone or observe the meeting online, but it may be more difficult to find means for them to participate. In other case, some technology will allow members of the public to be heard during conference calls or web-enabled conferences, although the body will need to find ways to enable comments to be heard one at a time.
    • In the absence of technology that would allow individual public comments, the public can be invited to submit email or other digitally or phone relayed comments in advance of the meeting that can either be read out loud at the meeting or provided to all the body’s members.
    • In all events, it will be good practice to let the public know how they can submit comments for public meetings and to include that information along with any agenda postings and other notices of public meetings. Then, it is important that the public body members see or hear all such public comments.
  • Consider in advance how to run a good remote meeting.  We will all learn from experience, but here are some thoughts to consider.
    • In advance of the meeting consider potential issues that could affect the quality of the meeting such as ensuring that parties mute their phones or computers when they are not speaking to limit background interference.
    • Ensure that all participants can hear and understand each other.
    • The Chair should consider in advance how they will recognize speakers and ensure that all body members have the opportunity to be heard.
    • Ensure that the Clerk or other party taking minutes is able to do so effectively.
    • Ensure that all votes can be clearly and accurately counted.
    • If you have members that have a conflict and need to recuse themselves from any discussion or vote, ensure you have a means for them to effectively ensure that they are not counted as present for such a vote. Consider having them dropping off a call temporarily or otherwise doing something that effectively “removes them from the room” during any discussion or vote in which they may have a conflict.
    • Be sure to communicate to the public and the body any special procedures that may need to apply to successfully run a remote meeting.
    • Consider providing public body members with a phone number of a responsible staff member or body member who they can call or text if for some reason they are dropped from the remote meeting or cannot otherwise participate for technology reasons.
    • Remember that while the public meeting is in session, communications between public body members will still be subject to the Freedom of Information Act. During the meeting, members should avoid texting and emailing each other outside of the public discussion taking place in the meeting just as they would at an ordinary meeting.
    • Check out the helpful “Remote Participation Checklist” and “Remote Participation Script” prepared for the Town of Arlington, MA. While not all of the provisions will apply to Illinois municipalities, these might provide a useful starting point for your own checklists and scripts that will be revised based on the technology that you are using and the requirements of the Illinois Open Meetings Act.
Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Monday, April 29th, 2019

Recent PAC Opinion Highlights Importance of Responding to FOIA Requests to Preserve Municipal Rights

In February, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 19-003. Like many PAC opinions, this one addressed a situation in which a public body — in this case, the Village of Ringwood — failed to respond at all to a FOIA request. Unsurprisingly, the opinion held that the Village had a duty to respond to the FOIA request.

The more important take-away from this PAC opinion, however, is the reminder that because the Village public body had failed to reply in a timely manner under Section 3(d) of FOIA, the Village would be prohibited both from imposing a fee for copies and from treating a request as unduly burdensome when it did ultimately reply (as it was ordered to do). This is a useful reminder to public bodies of the importance of timely compliance and communication with FOIA requesters.

At the same time, however, it is important to note that even in the event a public body is ultimately ordered to comply with an FOIA request following a previous failure to comply, apart from these 3(d) exceptions related to fees and “unduly burdensome” exceptions, public bodies are still allowed to assert any of the otherwise authorized exemptions under FOIA. They are not required to produce information that would have been exempt if produced in a timely manner. The PAC implicitly acknowledges this fact in a footnote in which it mentions that some of the items that might have been responsive to the request might have been exempt under FOIA, but the PAC could not make that determination because the Village had not responded to the PAC’s correspondence.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg, Matt Marcellis

Thursday, November 29th, 2018

Government Severance Pay Act Limits Severance Compensation to 20 Weeks and Prohibits Severance for Those Fired for Misconduct

Public Act 100-0895, which takes effect on January 1, 2019, limits the authority of non-home rule government employers to offer extensive contractual severance pay provisions to officers, agents, employees and contractors. The Act mandates that any severance provision in new or renewed government contracts or employment agreements may not exceed 20 weeks of compensation. The Act also mandates that any contract providing for severance pay must include a provision prohibiting severance pay if the officer, agent, employee, or contractor has been fired for misconduct as defined by the Act.

The Act defines “misconduct” in a way that includes:

  • Conscious disregard of the employer’s interests that include a deliberate violation or disregard of employer standards including but not limited to willful damage to the employer’s property or theft of employer or customer;
  • Carelessness or negligence sufficient to show culpability or wrongful intent or intentional and substantial disregard of the employer’s interests or the employee’s duties and obligations;
  • Chronic absenteeism or tardiness in deliberate violation of a known policy, or one or more unapproved absences following a written reprimand;
  • Willful and deliberate violation of a State-regulated standard which would cause the state licensed or certified employer to be sanctioned or have its license or certification suspended;
  • Violation of a known, reasonable, and fairly and consistently enforced employer rule; and
  • Other serious misconduct such as committing criminal assault or battery on another employee, customer or invitee of the employer, or committing abuse or neglect of an individual in the employee’s professional care.

On initial review it might seem that any egregious or well documented violation, like those identified in this Act, would result in an uncontested termination without severance pay. Before terminating an employee, employers generally ensure that such a termination is based on well documented, performance-based issues. Many times, however, employees who were terminated for performance issues later sue their employer for such things as discrimination (for example: “I was terminated because I am a woman, or because of my age, or because of my religion”), when in fact the reason they were fired was because of their poor work performance, chronic absenteeism, abuse of sick leave, or for other performance based problems. When an employer has such a legitimate, non-discriminatory reason for terminating an employee, the employer should have a defense against such a discrimination lawsuit. However, to protect themselves from the risk and associated costs of defending against even an unwarranted discrimination lawsuit, employers frequently find it useful to offer a minimal severance package in exchange for a full release from the terminated employee.

The Government Severance Pay Act takes away the ability of a government employer to protect itself in this manner. That is because a government employer who terminates an employee for any of the legitimate performance reasons covered by the new Act cannot now offer the terminated employee any severance in exchange for an agreement not to sue. If the employer wishes to offer severance for any legitimate reason — such as to reduce the risk of a future lawsuit — then it cannot base that termination on the most common performance-related issues. This leaves employers in a difficult situation where, despite the fact that a severance and release agreement might reduce their costs, they no longer have that option available in the case of most performance-based terminations. Admittedly, this Act, reflects the public perception – and occasional reality – that severance agreements have been used to provide additional rewards to non-deserving or offending terminated employees. However, the Act may well have the unintended consequence of increasing government litigation costs for termination of employees.

Further muddying the waters is Public Act 100-1040 that was passed earlier in 2018 and went into effect on August 23. This Act applies to severance packages given to employees terminated in cases where there was a finding of sexual harassment or sexual discrimination. In those cases, the Act mandates publication disclosing specifics of the severance agreement including the amount of the payment and when the severance agreement was approved. Presumably, after Public Act 100-0895 goes into effect on January 1, 2019, the requirements of Public Act 100-1040 will essentially be moot. It should no longer be possible to give a severance package in cases where there has been a finding of sexual harassment or sexual discrimination since those would seem to be the sort of behavior for which severance pay will no longer be permitted.

With time, we will see if these Acts, intended to discourage the provision of severance pay to clearly offending employees, actually turn out to be useful tools to enable municipalities to refuse to provide such pay. Alternatively, they may become a problematic limitation on the ability of government employers to effectively terminate employees without challenge. In all events, however, local governments should remember these new requirements when negotiating new or renewed employment agreements, when negotiating severance agreements and when considering the discipline or termination of employees who may fall under the requirements of either of these Acts.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg, Kelly A. Cahill

Tuesday, October 30th, 2018

The PAC Reiterates That Public Bodies May Only Discuss Specific Employees, Not a Class of Employees, in Closed Sessions

In October, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 18-012 in which it repeated 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” applies only to discussions of specific employees. It does not authorize closed session to discuss matters concerning whole classes of employees or budgetary considerations.

The PAC opinion arose from a request for review from the President of Western Illinois University’s Chapter of the University Professionals complaining that the University’s Board of Trustees used a closed session to discuss layoffs generally and whole classes of employees rather than discussing a specific, individual employee as the Board had asserted. After review, the PAC found that although the Board discussed one individual employee’s contract during the closed session, most of the closed session discussion concerned budgetary matters and considerations applicable to whole categories of employees and not just this individual’s performance.

The PAC emphasized that discussions concerning categories of employees or budgetary discussions that do not center on the merits or conduct of specific employees or prospective employees are not authorized by the 2(c)(1) exemption. According to the PAC, the elimination of a job or position for non-performance reasons, even one held by only a single employee, would not fall within the scope of the 2(c)(1) exception.

Accordingly, the PAC ordered the release of that part of the closed session minutes and verbatim recording that related to budgetary matters and categories of employees, although it did not order the release of the portions concerning the specific employee’s contract.

This opinion serves as a reminder that during closed sessions to discuss a specific employee, it is important to resist the natural tendency to allow discussions of individual employees to slip into larger discussions of budgetary and staffing considerations. These larger issues are the sort that are expected to be conducted and discussed in open session without the protections provided by closed session for the discussion of individual employees.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Tuesday, October 2nd, 2018

FCC Issues Regulations Covering Small Cell Facilities on Public Rights of Way

On September 26 of this year, the Federal Communications Commission (the “FCC”) approved new regulations governing the installation of wireless and small cell facilities in public rights of way. According to the FCC, this is part of its ongoing effort to remove regulatory barriers inhibiting the deployment of 5G and other advanced wireless infrastructure. From a local government perspective, however, many have argued that these efforts essentially facilitate the rollout of new, private wireless provider infrastructure using public resources and in a manner that is, essentially, subsidized by public taxpayers.

As municipal users already know, the Illinois Small Wireless Facilities Deployment Act (Public Act 100-0585)(the “Act”) became effective June 1st of this year. That Act already preempted most local regulation and control of requests to install small cell wireless devices in municipal rights-of-way and in exclusively commercial and industrial districts. In response, municipalities around the state implemented new regulations consistent with that Act based, most often, on the model ordinance created by the Illinois Municipal League (the “IML”). That model ordinance included maximum permitted fees, time deadlines, and procedures for responding to permit requests to install small cell devices in public rights of way.

Analysts with the IML and other organizations are studying the new FCC Order to determine whether, or to what extent, it may be preemptive of the already restrictive Illinois Act, and whether, or to what extent, any of the recently passed Small Cell Ordinances will require modification to comply with the Federal Order. Initial review suggests that apart from shorter processing shot-clock times for small cell applicants, the FCC Order may not be dramatically more restrictive than the Illinois Act already is. The new FCC order will be effective 90 days after its publication date in the Federal Register (which, as of the date of this writing, had not yet happened). We anticipate that the IML and others will offer recommendations well before that effective date, so municipalities should have time to make changes, if any are required.

In the meantime, like the Illinois law, the FCC Order still leaves municipalities with some control over appearance standards for these new facilities. As small cell devices have been rolled out around the nation, there are more examples of devices that may be more or less appropriate for your municipality. Now is a good time to review your standards and to look at samples of deployments elsewhere to determine if you have reasonable and non-discriminatory appearance standards in place sufficient to protect your community’s appearance and the visual comfort of your residents.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Tuesday, September 18th, 2018

Municipal Election Filing Season Is Upon Us

Preparations for the April 2, 2019, Consolidated Election for municipal offices are now underway. The Illinois election regulations can be very confusing with different rules, petition requirements and filing deadlines for partisan and non-partisan municipalities and for established political parties.

Municipal election officials need to know if their municipality holds partisan or non-partisan elections. This is often a source of great confusion because most (but not all) municipalities established before January 1, 1992, when the Illinois Municipal Code governing elections was revised, were, by default, “partisan” municipalities unless they had held a referendum to become “non-partisan.” Effective January 1, 1992, the amendments to the municipal code reversed that.

Adding to this confusion is the fact that in many “partisan” municipalities, the majority of candidates are not members of established political parties but, instead, are identified as “independent” on petitions and ballots. Often people incorrectly assume that because they always have had “independents” on their ballot then that must mean they have “non-partisan” elections. The opposite is true — in non-partisan elections candidates are not identified with any party, so you will only find the official “independent” designation in partisan elections.

All of this matters because the filing deadlines, petition signature requirements and forms to be used will depend on whether a municipality holds partisan or non-partisan elections and whether in a partisan municipality there are candidates from established political parties submitting petitions. Are you confused yet? When in doubt we urge you to consult with your legal counsel, your County Clerk, or with the State Board of Elections. You can find much helpful information on the Illinois State Board of Elections website or by reading the 2019 Local Election Officials Handbook issued by the State Board of Elections here. The Municipal Clerks of Lake County will also be hosting a Local Election Training Program in September with a wealth of helpful information for local election officials.

In the “good news” department for many local municipal election officials, if your office is not otherwise scheduled to be open on December 24, 2018, then you do not need to come in specially that day to accept objections to nominating petitions for new political party, nonpartisan, and independent candidates. State law says that the objection period for those nominating petitions ends on the fifth business day after the December 17 petition filing deadline. If the 24th is not a business day for you, then you should not count it in the five business day calculation. Instead, close the objection period on the fifth actual business day after the December 17 filing deadline. For many offices that are scheduled to be closed on December 24, 2018, this will likely mean that objection petitions will be due instead on December 26 or whenever you are next open for business.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Thursday, April 19th, 2018

Governor Signs Bill Regulating Small Cell Devices

After long negotiations and discussions in Springfield, Gov. Rauner last week signed Public Act 100-0585 into law as the Small Wireless Facilities Deployment Act (the “Act”). This new law is designed to regulate the deployment of small cell devices in public rights of way. The bill pre-empts both home rule and non-home rule local government control of their rights of way. The idea behind the legislation (and the idea that appears to have won the day in Springfield) is that this pre-emptive law will help facilitate the rapid deployment of new wireless technology across the state and will eliminate local cost and regulatory barriers to deployment. The counter-vailing argument, that public taxpayers and their rights of way will be subsidizing private wireless providers, seems to have lost out to the argument that local governments were slowing down the deployment of this technology. The new Act creates a uniform procedure for small cell providers to gain access to public rights of way and to public facilities in those rights of way in order to deploy their small cell technology.

In simple terms, small cell technology is one technology used by wireless providers to provide greater access to high speed wireless data for consumers. Instead of relying solely on a handful of giant cell towers, the technology uses multiple smaller antennas that must be located close to users. These can be deployed or “collocated” on existing facilities such as existing utility poles, street lights, buildings or water towers, but they require proximity to users to be effective. They may also be deployed on new facilities when existing facilities are not available in the necessary range.

While the Act purports to leave some local control and still gives local authority to require a permit to locate a small cell device in a public right of way, in many ways it eliminates discretion at the local level. Small cell applicants will not be treated like local governments treat other utilities or franchisees who use their rights of way. Instead the Act accords small cell applicants certain rights, and limits the rights and ability of local authorities to recover costs and retain control for use of their rights of way. For instance, the bill declares that, from a zoning perspective, small cell devices will be considered a permitted use. The bill also establishes the procedure that must be followed when applications are received for small cell devices in public rights of way, the fee that may be charged and limits on the local government’s authority to deny a request.

Effective June 1, 2018, when a collocation or new pole request is made by a wireless provider to a local authority, the local authority must respond in accord with the Act. The regulations contained in the Act limit the ability of local governments to control the poles on which new antennas will be placed, the height of the new facilities (though there are some caps contained in the Act) and the spacing between poles. The Act sets precise rules and time limits for processing applications and it sets caps on the amount that may be charged for processing permits. The Act also limits the ability of local governments to control or deny access to their own poles in their rights of way and governs the price that may be set for the use of those poles. Local governments will still have some control over issues of public safety and some design standards, but the Act will make it more difficult for municipalities that have been working to have all utilities undergrounded.

Many localities had been approached in the last year with requests for monopoles in excess of 100 feet, and the good news in this bill is that, in general, local governments will not be required to accept new poles in excess of 45 feet. Similarly, many localities were concerned they would be forced to accept these devices on their water towers at fixed rates, but water towers are not included under this Act. For those bodies that have already entered into Agreements regarding placement of small cell devices on their poles, those Agreements may remain in effect for those applications submitted before the Act goes into effect and for a two-year period thereafter, it appears that the applicant will get to elect whether to proceed under the agreement or under the new terms offered under the Act.

Presently the Act is only in effect through June 1, 2021. Shortly after the effective date, local governments must ensure that their terms for use of their facilities, their permits, their application rates, their design standards and the review process for these applications – including their public safety requirements and limitations — are all in place if they wish to be able to enforce them under the Act.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Monday, December 12th, 2016

Prevailing Wage Act Reminder

Let it Snow: ZRFM reminds our readers that while the Prevailing Wage Act applies to the installation of landscaping as part of an otherwise covered work such as a new building, earth moving and grading for a covered project or “hardscaping” such as installing, repairing or demolishing a sidewalk or retaining masonry wall, not everything involving landscaping is covered by the Act. If it were still summer we might mention lawn mowing, weeding, or mulch application. But since winter is coming, it seems appropriate to mention that snow removal, holiday lighting and seasonal decoration installation are also not covered by the Act if they are not done in conjunction with an otherwise covered work. For more information, see the Illinois Department of Labor’s Prevailing Wage Landscape FAQ sheet at https://www.illinois.gov/idol/FAQs/Pages/Landscaping.aspx.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Wednesday, August 17th, 2016

New PAC Opinion Concerns FOIA and Personal Email Accounts

In a significant new opinion issued on August 9, 2016, the Illinois Attorney General’s Public Access Counselor issued an opinion finding that “communications pertaining to the transaction of public business that were sent or received on … personal email accounts are ‘public records’ under the definition of the terms in Section 2(c) of FOIA.”  See Public Access Opinion 16-006. This is a new interpretation of the reach of FOIA law and has the potential to raise other, new questions.

The PAC’s opinion involved a request made by CNN to the Chicago Police Department seeking “all emails [for certain officers] related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed.” The PAC’s Opinion discusses whether the Chicago Police Department had any obligation to search public employee’s personal email accounts for matters relating to the transaction of public business.  The PAC concluded that it does have such an obligation.

In order to determine whether emails on the personal account of a government employee are subject to FOIA, the PAC needed to determine if such emails fell into the category of “public record.” To do this, the PAC’s analysis relied on the earlier City of Champaign v. Madigan decision to determine whether something qualifies as a public record under Section 2(c) of FOIA.

As such, it must “(1) pertain [ ] to the transaction of public business and have either been (2) prepared by, (3) prepared for, (4) used by, (5) received by, (6) possessed by, or (7) controlled by a public body.”  The Champaign case had concluded that city council members acting alone were not a public body, but acting in concert they were a public body.  The issue of whether employee emails on private devices were public records was not explicitly decided in the Champaign case,  but here the PAC applied the Champaign reasoning to conclude that employees doing the work of the public body would be creating public records regardless of the device or email address on which they were prepared. According to the PAC, “when an individual public employee . . . acts in an official capacity, he or she transacts public business as a member of a municipal police department, which clearly is a public body subject to the requirements of FOIA.”

The PAC noted that if the communication was a public record, it does not matter on what device or by what means it was sent. Again, citing Federal law, the PAC concluded that “an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door.”

In support of its position that employees’ emails about work undertaken on personal devices/addresses are subject to FOIA, the PAC also discussed the type of search a public body is required to conduct for responsive records. In referencing federal law, it noted that a public body must conduct “a reasonable search tailored to the nature of a particular request” and noted that it could not limit its search to just one record system if there were others that were likely to have the information that was requested. The PAC concluded that in conducting an adequate search, the Police Department had a duty to at least try to obtain responsive records from personal email accounts since the request specifically sought such records.

In response to concerns regarding employee personal privacy, the PAC indicated that personal matters would not be required to be produced but that information that bears on the public duties of employees was not subject to personal privacy exemption. While the PAC acknowledged that FOIA does not describe how a public body is required to obtain this information, it indicated that at least depending on the circumstances, they could simply have asked the officers to produce responsive records and that this would satisfy the requirement to conduct a reasonable search. That is, the public body, if it makes a request in good faith, will have performed its obligation without invading the rights of its employees.

Thus, the PAC indicates that the Police Department at least needed to ask for the information. It does not address how to enforce the production of that information nor does it discuss how a body is to determine what, precisely, “bears” on the public duties of employees. For instance, if a police officer wrote to his mom that he felt terrible about all of the negative coverage stemming from the case, would that “bear” on his duties since it relates to the case? This might “bear” on his duties, but would not be covered by the analysis applied in the Champaign case.

Finally, it is worth noting that the PAC also held that simply searching the Police Department accounts for the name “Laquan McDonald” was by itself insufficient because there may have been references to the incident using the name of the officer, the incident number, the location or some other physical descriptions. It is also possible the names were not spelled correctly in some of the records. Therefore, the PAC found that the use of the full proper name as the only search term was not sufficient to discover the relevant records.

It is not clear what combination of search terms would constitute an adequate search under this standard, but apparently just one – the name of the party in question – was not sufficient. This aspect of the opinion, while it may receive less attention than the “private device” aspect, may have equally large implications for FOIA officers trying to conduct appropriate searches for requested documents, as it raises the question of — but does not fully answer — what combination of search terms will constitute an adequate search.

This decision is likely to be controversial. It expands the reach of FOIA into personal accounts of employees and expands the duty of government bodies to search for records in personal accounts and subjects their search terms and methodology to greater scrutiny. How this will be interpreted and implemented is likely to raise new questions and challenges that may depend on the legislature and courts to further clarify the full scope and reach of FOIA in Illinois.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg