Local Government Law Bulletin

Wednesday, August 8th, 2018

Liquor Licenses Can Now Be Granted Near Churches, Schools

On August 2, 2018, SB2436 became law, allowing liquor commissioners to grant liquor licenses to establishments within 100 feet of schools, churches, and certain other buildings.

Please note that the local liquor code must expressly allow for the liquor commissioner to grant the exemption from what is otherwise the default 100-foot statutory distance requirement. The liquor commissioner must also exercise his or her right to grant the exemption. It is not automatically granted even if the liquor code allows for the exemption.

A municipality interested in allowing the new exemption should review its liquor code and amend it to comport with the statutory requirement.


Brad Stewart

Author: Brad Stewart

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

Wednesday, July 25th, 2018

Governor Set to Sign Legislation Expanding Employee Background Checks

On May 25, 2018, the General Assembly passed Senate Bill 2907 and on June 22 sent it to Governor Bruce Rauner where it awaits his signature. The bill, which amends the current Criminal Identification Act, would allow agencies in Illinois that can either perform or receive national criminal background checks to participate in the FBI’s Next Generation Identification (NGI) Rap Back Service. This service, which will be administered in Illinois by the State Police, allows authorized agencies to receive notification of arrests anywhere in the country on employees who have had their fingerprints submitted to the FBI database. Such fingerprints could be taken as part of a background check run at the time of hire. This service eliminates the need for repeated background checks on a person from the same applicant agency. Prior to this legislation, employers in Illinois only received a one-time snapshot of an employee’s criminal record at the time of hire along with updates only on any crimes the individual committed within the state. Participation in the FBI’s service would allow employers to receive real-time notifications of infractions of law anywhere in the U.S.

This capability has obvious benefits for agencies employing persons in positions of trust, such as school teachers or daycare workers, but the program raises some potentially serious issues as well. The American Civil Liberties Union (ACLU) of Illinois is opposed to the measure because, as a part of the system, the fingerprints submitted to the FBI database are retained by the federal agency indefinitely, and the FBI is not restricted to using the prints solely for the Rap Back System. Furthermore, employers could be notified of mere arrests, not just convictions, potentially impacting an employee’s livelihood before guilt of any wrongdoing is proven. While the Illinois State Police indicate they do not intend to send out notifications of arrests, but rather only convictions, the possibility remains.

A second concern is the accuracy of the information the Illinois State Police could relay to employers. In 2004, the National Institute of Standards and Technology reported that fingerprint identification was 99.6% accurate. This is an impressive figure to be sure, but it still allows for a .4%, or 1 in 250, chance that there will be an error. Add to this the fact that the FBI’s fingerprint database, the Integrated Automated Fingerprint Identification System (IAFIS) which the Rap Back system draws from, had more than 70 million prints in the criminal master file alone as of 2012. Countless law enforcement agencies across the county access this FBI system daily to look for matches with alleged perpetrators. While the chance for error is low, the sheer volume of prints and cross-checks that occur make it a virtual certainty that errors will occur.

While there are definite benefits to the FBI’s NGI Rap Back Service for municipalities employing persons in positions of trust, there are also potential issues to consider. These include the security of the prints submitted to FBI’s system, the potential for misuse, and the possibility of a false criminal identification greatly impacting an innocent employee. We will be closely monitoring whether the governor chooses to sign Senate Bill 2907 and make the FBI NGI Rap Back Service available to Illinois employers.


Author: Ryan P. Farrell, 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

Tuesday, June 12th, 2018

Proposed Bill Would Amend Liquor Control Act

Late last month, the Illinois General Assembly passed a bill concerning the prohibition against granting liquor licenses within 100 feet of a church, school, and various other locations. If approved by the Governor, the law would allow an exemption to this general prohibition.

Pursuant to 235 ILCS 5/6-11, “[n]o [liquor] license shall be issued for the sale at retail of any alcoholic liquor within 100 feet of any church, school other than an institution of higher learning, hospital, home for aged or indigent persons or for veterans, their spouses or children or any military or naval station.” Except for churches, the distance is measured between lot lines, not the distance between buildings. Not surprisingly, such a prohibition can prove troublesome for both local businesses and municipalities.

However, Senate Bill 2436 seeks to provide an exemption to this rigid prohibition. Specifically, and notwithstanding any provision to the contrary, the proposed law provides that “a local liquor control commissioner may grant an exemption to the prohibition . . . if a local rule or ordinance authorizes the local liquor control commissioner to grant that exemption.”

We will keep following this bill as it goes to the Governor for approval. It appears likely that this bill will become law as it passed unanimously in the Senate and by a vote of 97 to 17 in the House.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Wednesday, May 9th, 2018

Illinois Appellate Court Issues Opinion on Admissibility of Radar Device Reading

In April 2018, the Illinois Second District Appellate Court decided an appeal raised by a defendant motorist arising from a speeding ticket in Algonquin. The trial court found defendant guilty of the charge of speeding as set forth in the Village’s municipal code. The Village’s municipal code adopts, by reference, the Illinois Vehicle Code.

In the case of The Village of Algonquin v. Mark E Sato, the defendant raised two issues: (1) that because the Village did not introduce evidence demonstrating compliance with the requirement of an engineering survey, it failed to meet its burden; and (2) that there was no evidence that the tuning forks used had been independently tested for accuracy of the radar.

First, the defendant contended that the speeding charge was unenforceable based on the Village’s failure to present a traffic engineering survey as required by the Code of Federal Regulations and the Manual on Uniform Traffic Control Devices (MUTCD). The Appellate Court affirmed the trial court’s finding that it is not the Village’s burden to demonstrate compliance with the Code’s requirements. The Court cited a recent 1st District case, Village of Mount Prospect v. Kurtev, in which that Court held that it is a defendant’s burden to introduce evidence that the Village failed to comply with applicable regulations. Therefore, to raise the defense, the defendant was required to introduce evidence that the Village failed to comply with the Code requirement of attaining an engineering survey.

Second, the defendant challenged long-standing Illinois law regarding admissibility of police radar. Illinois case law has previously held that radar evidence is admissible in a speeding case where the arresting officer tests the radar with a single tuning fork immediately before the stop and after the stop. People v. Abdallah, 82 Ill. App. 2d 312 (1967). In this recent case, the arresting officer tested the radar before and after he stopped the defendant. The defendant cited case law from other states calling for proof that the tuning forks used to test the radar be independently tested and certified for accuracy. In this case, the Court held that “the key consideration is that [the officer] used two tuning forks, set at different speeds.” Testing the radar with two or more tuning forks set to different speeds allows each test to corroborate the other and minimizes the likelihood of unreliable results. In further support of upholding Illinois precedent, the Court found that in those courts that rejected reliance on a test with a single uncalibrated tuning fork, testing with two or more tuning forks was endorsed, even without independent evidence of their accuracy.

The Court’s holding provides guidance that it is defendant’s burden of proof in raising the defense that a municipality failed to comply with Code provisions. In addition, that long-standing court precedent regarding testing of radar with a single tuning fork remains Illinois law, and further that the use of two tuning forks in connection with radar is sufficient in itself to prove speeding.


Author: Dave Noland

Tuesday, May 8th, 2018

Illinois Appellate Court Decides Case Concerning FOIA

Last month, Illinois’s Fourth District Appellate Court issued an opinion concerning the Freedom of Information Act and what constitutes a “public body” under the Act. The request at issue sought records of the city’s Housing Task Force (“HTF”). Specifically, the request sought 1) records of “all meeting times, locations, and meeting notices of the [HTF];” 2) “copies of all minutes, notes and documents created during the meetings; and 3) “all communication[s], electronic or otherwise, between any member of said taskforce and any city [] employee, city staff, or elected official.”

In December 2014, the HTF was created to identify housing issues and trends within the city. The HTF convened several times between December 2014 and July 2015, and consisted of eighteen (18) community members and four (4) city employees.

After denying the FOIA request at issue, the requester sought review through the Illinois Attorney General’s Public Access Counselor (“PAC”). The PAC determined that the records were subject to disclosure. The city subsequently filed suit for administrative review, to which the circuit court also found that the records were subject to disclosure.

On appeal, the city argued 1) that the HTF was not a “public body” subject to FOIA, and 2) that the requested records did not constitute “public records” as defined under the FOIA. As to the first issue, the appellate court simply stated that the FOIA request was submitted to the city, not the HTF. Thus, “the relevant inquiry is whether the city, not the Housing Task Force, is a ‘public body.’ ” There was no dispute as to whether or not the city was a public body.

Next, the appellate court was tasked with determining whether or not the requested documents were “public records.” “[T]o qualify as a ‘public record’ under the Act, the requested documents must (1) pertain ‘to the transaction of public business’ and (2) have been ‘prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.’ ” (emphasis added by the court.) With regard to the request, the appellate court agreed that the requested records pertained to “pubic business” and the records “appear to concern business or community interests and not private affairs.” Furthermore, the city had already indicated that it was in possession of the requested records. Therefore, the appellate court determined that the requested records were subject to disclosure.

As a result of this opinion, any public body that wishes to set up a housing task force, or something similar, should be aware that any records of that entity may be subject to disclosure.


Jacob-D.-Caudill

Author: Jacob D. Caudill

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

Thursday, April 19th, 2018

Appellate Court Rules That City Did Not Engage in the Unauthorized Practice of Law at Local Administrative Hearing

Late last year, the Illinois 1st District Appellate Court decided an appeal raised by an individual landowner (the “Owner”) arising from the City of Chicago’s Department of Administrative Hearings, seeking review of the decisions of the administrative law judge’s findings of liability as to ordinance violations.

In the case at issue, the Owner argued that it was an unauthorized practice of law by the City of Chicago (the “City”) when they were not represented by counsel at the administrative hearing, therefore the findings should be null and void. The facts of this case included that at the hearing, no one appeared on behalf of the City, including any agent or employee. The administrative law judge served as both judge and prosecutor, including introducing photographic evidence without witnesses, finding that the City had set forth a prima facie case, and finding the Owner liable.

The Illinois statute making it unlawful for a corporations to practice law or appear as an attorney at law for any reason in any court applies equally to private and municipal corporations.

The Court held that the Owner’s argument against the City failed. Specifically, there can be no practice of law unless an actual person engages in an undertaking that requires legal knowledge or skill. In the present case, the Court explained that corporations can only act through their agents, and because the Owner failed to identify an actual person acting on behalf of the City, the burden was not met.

The Court’s holding provides further guidance that a municipal body will not be found to engage in the practice of law unless they have an actual person (1) giving advice or (2) rendering services that (3) require the use of any degree of legal knowledge or skill.


Author: Dave Noland