Local Government Law Bulletin

Thursday, April 20th, 2017

Illinois Appellate Court Decides Case Concerning FOIA

Last week, an Illinois appellate court issued an opinion concerning Illinois’s Freedom of Information Act (FOIA). Specifically, the court considered the timing of when a new statutory amendment could impact a FOIA request.

On January 21, 2013, the Plaintiffs, a structural engineer and his firm, filed a FOIA request seeking a copy of the complaint that was filed against the engineer with regard to his structural engineer’s license. After the Defendant, the Department of Financial and Professional Regulation, denied the request, the Plaintiffs sought review through the Public Access Counselor, who ultimately upheld the Defendant’s decision to withhold the complaint from disclosure.

Thereafter, the Plaintiffs filed suit in circuit court on November 6, 2014. On July 27, 2015, a hearing was held on Plaintiffs’ motion for summary judgment. In its decision, the circuit court found the complaint to be exempt from disclosure, but held that two exhibits to the complaint could be disclosed. Both parties subsequently moved for reconsideration.

In support of reconsideration, the Defendant argued that the court should reconsider its decision because a statutory amendment, which took effect August 3, 2015 (a week after the hearing), explicitly prohibited disclosure of complaints and exhibits such as those at issue. The circuit court agreed and held that the Plaintiffs were not entitled to disclosure of either the complaint or the exhibits.

On appeal, the appellate court affirmed the decision of the circuit court, finding that the August 3, 2015, statutory amendment prohibits the disclosure because the new statute did not have an “impermissible retroactive effect.” The fact that injunctive relief was sought also strengthened the court’s holding because injunctive relief “is a prospective form of relief for which the circuit court must apply the law in effect at the time of its decision.”

This case reinforces that municipalities must always stay up to date on recent changes to the FOIA and the laws impacting it.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Thursday, April 6th, 2017

House Passes Bill Making It Easier to Dissolve Townships

Last week, the Illinois House of Representatives passed a bill that would amend Illinois’s Township Code. House Bill 496, which would take immediate effect if passed, proposes to amend the Township Code to make it easier for a city council of a township and/or registered voters of a township to dissolve a township that exists within the same or substantially the same boundaries as a municipality.

Specifically, the bill removes existing threshold requirements for dissolution, including that:

  • the municipality’s city council exercises powers and duties of the township board, or in which one or more officials serve as an officer or trustee of the township;
  • the township be located within a county with a population of 3 million or more
  • the township contain a territory of seven square miles or more.

For a proposition to dissolve a township to be placed on a ballot, the Township Code still mandates that the township’s city council pass an ordinance allowing for such a resolution, or a petition supporting dissolution of the township must be signed by a minimum of 10 percent of the registered voters of the township. If a township were to be dissolved, by operation of law, the rights, powers, duties, assets, property, liabilities, obligations and responsibilities would vest in and be assumed by the municipality.


Kristin G. Good

Author: Kristin G. Good

Tuesday, March 21st, 2017

Police Reports Held to be FOIA-able Despite Open Investigation

In its first public access opinion of the year, the Public Access Bureau of the Attorney General has opined that the mere existence of an open police investigation will not exempt a police report from the Freedom of Information Act (FOIA).

One of the more popular FOIA exemptions invoked by government agencies is the exemption under 7(1)(d)(i) of the FOIA Act, which exempts law enforcement records to the extent that disclosure would “interfere with pending or actually and reasonably contemplated law enforcement proceedings.” Under this exemption, it is common for law enforcement agencies to withhold police reports while an investigation is pending. Following the new Attorney General Opinion, an open investigation does not automatically invoke this exemption.

In the case considered by the Attorney General, the requester submitted a FOIA request to the Illinois State Police for a field report of a traffic accident. The Illinois State Police denied the request entirely, citing section 7(1)(d)(i). Following the requester’s appeal to the Attorney General, the Illinois State Police attempted to support its denial with an affidavit stating that there was an open investigation and that disclosure would interfere with the investigation. The Attorney General was unimpressed with the affidavit, calling it “devoid of detail” as to how disclosure of the report would interfere with the open investigation. The Attorney General opined that to invoke the section 7(1)(d(i) exemption, the law enforcement agency must set forth facts that demonstrate how the disclosure of records would interfere with the pending law enforcement proceeding.

While the Attorney General opinion does not close the door on using the section 7(1)(d)(i) exemption for law enforcement records when there is an open investigation, it is clear that to invoke this exemption, a law enforcement agency must be able to specifically detail how and why disclosure would jeopardize the investigation.


Jennifer J. Gibson

Author: Jennifer J. Gibson

Monday, March 20th, 2017

Federal Appeals Court Issues Decision Regarding Jail Underwear Policy

In Mulvania v. Sheriff of Rock Island County, the United States Court of Appeals for the Seventh Circuit was asked by the named plaintiff and ten additional female detainees to review the Rock Island Sheriff’s policy requiring female detainees to wear white underwear during their time in detention. The United States District Court for the Central District of Illinois granted summary judgment in favor of the defendants. The Seventh Circuit reversed the grant of summary judgment.

The Rock Island County Sheriff’s policy required detainees with colored underwear to remove their colored underwear upon admission to the jail and either purchase white underwear from the jail’s commissary, contact family members to obtain white underwear, or wear no underwear during their detention. The Sheriff’s justification for the policy was to prevent detainees from extracting ink from colored underwear to be used in making tattoos. The Sheriff, however, did not identify any instances of ink from colored underwear being used to make tattoos.

The Court of Appeals analyzed the claims of the detainees under the Fourteenth Amendment instead of the Eighth Amendment, which prevents cruel and unusual punishment, citing that detainees are not convicted prisoners. As the Court indicated, “the Fourteenth Amendment’s Due Process Clause prohibits holding pretrial detainees in conditions that ‘amount to punishment.’” A pretrial condition is considered “punishment” if it is imposed for the purpose of punishment or it is not reasonably related to a legitimate governmental interest. The Court noted that the Sheriff’s security concern justification was undermined by the fact that the Sheriff often did not enforce the policy. The Court’s opinion stated that even if the policy was found to be rationally related to a legitimate governmental interest, the harm to the individual dignity of detainees might be excessive in relation to the governmental interest. As a result, the Seventh Circuit Court of Appeals reversed the summary judgment finding in favor of defendants and the case was remanded for further proceedings.


Kevin A. Chrzanowski

Author: Kevin A. Chrzanowski

Thursday, March 9th, 2017

Illinois Appellate Court Issues Opinion Concerning Candidates Signing Nominating Petitions

Thanks to a recent appellate court decision, candidates for local office can be sure that their nomination papers will not be invalidated if the candidate later signs petitions for members of another political party. In this recent case, the Fourth District held that the only legal consequence in such a scenario would be invalidating the more recent signatures, leaving the candidate’s signature on her own petition as valid.

The Schmidt v. Illinois State Board of Education case presented a common situation in local politics, but with a twist. A Democratic candidate for the office of state Representative signed her nomination papers and then signed multiple petitions for candidates for other positions. One such petition was for a Republican candidate for county Recorder. A concerned citizen filed an objection with the election board, claiming that the Election Code prevents candidates of one party from signing petitions for candidates of other political parties.

As the appellate court recognized, the relevant statute is straightforward: It requires the candidate to state that he or she is “a qualified primary voter of the party to which the petition relates” and further that “[a] ‘qualified primary elector’ of a party may not sign petitions for or be a candidate in the primary of more than one party.”

The appellate court based its decision on the opinion in Watkins v. Burke. In that case, the court held that while the statute prohibited signing petitions of different parties, the consequence of a violation was not the striking of any name appearing on petitions for multiple parties. Rather, once someone signed the petition of one party, binding them to that party, their signatures afterward on another party’s petitions would be stricken.

The difference between Watkins and the recent decision in Schmidt was that the candidate’s entire petition was at issue since it depended on a valid statement of candidacy. The Fourth District held that just like in Watkins, what mattered was how the candidate had first aligned herself. Since the first paper she signed was her own statement of candidacy as a Democrat, the statement was true at the time because she had not yet signed any Republican petitions.

However, when she signed the Republican petition, she was not eligible to sign it because she had already aligned herself with the Democratic party through her statement of candidacy. Thus, consistent with Watkins, her nomination papers and her signature on the earlier Democratic petitions were valid. Her signature was only stricken as to the Republican petition.

The court explained the theory behind its interpretation of the statute. In sum, the prohibition against signing petitions for multiple parties exists to prevent political gamesmanship. Candidates cannot pump up the petitions of political opponents whom they deem to be weak in the hope of securing an easier contest in the general election. The prohibition was not intended to be punitive and disqualify an otherwise eligible candidate. Rather, the prohibition was intended to prevent cross-party petition signing.

Candidates for local office should, of course, be careful to sign their own petitions first. They should still sign only petitions for other candidates aligned with their party. However, candidates can now take comfort that inadvertently signing another petition after their own statement of candidacy will not invalidate their own petition, even if the other petition relates to a different political party.


Gregory J. Barry

Author: Gregory J. Barry

Thursday, March 9th, 2017

Proposed Changes to Illinois’s Freedom of Information Act

Earlier this week, a bill was introduced in the Illinois House of Representatives concerning a municipality’s ability to deny Freedom of Information Act (FOIA) requests. The bill, if passed, would amend Section 3.1 of the FOIA, Requests for Commercial Purposes. Specifically, the law would allow a municipality to deny a request if: (1) the request is made for a commercial purpose; (2) the request is made by the same person for the same records previously provided under the FOIA; and (3) the request is made less than six (6) months after the previous request.

This bill is among a variety of other proposed changes to the FOIA by Illinois’s 100th General Assembly. Other changes include House Bill 619, which provides additional FOIA exemptions for records requested by persons committed to correctional facilities. Specifically, records would be exempt from inspection and copying by persons committed to a correctional facility if the disclosure would result in a risk of harm to anyone, risk of inmate escape, or would allow the release of certain victim information. Furthermore, law enforcement records of committed persons, such as mug shots and crime scene photographs, would also be exempt from disclosure if requested by persons committed to correctional facilities.

We will continue to provide timely updates as these bills move through the legislative process.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Thursday, February 23rd, 2017

MCCG Annual Legislative Trip

The McHenry County Council of Governments (MCCG) conducted its annual legislative trip to Springfield last week. The MCCG constituents met with State Representatives Durkin, Flynn, McSweeney, Reick, Skillicorn, and Wheeler, as well as State Senators Althoff, Cullerton, McConnaughay, and Rodogno. The group was also able to meet with Governor Rauner the same afternoon as his annual budget address.

Key items on the MCCG legislative agenda included perennial concerns of potential cuts to the Local Government Distributive Fund (LGDF) and the resource burden placed on local governments by unfunded legislative mandates, such as prevailing wage requirements and heightened FOIA regulations.

Regarding the LGDF, the tone of the legislators and Governor Rauner was that the LGDF was not in immediate danger of being cut substantially, if at all. This is a very different tone from two years ago when a bill proposing a 50 percent cut to LGDF funding was contemplated and seemed imminent as part of Governor Rauner’s initial budget priorities.


Brad Stewart

Author: Brad Stewart

Thursday, February 23rd, 2017

Proposed Legislation Concerning FOIA and the Open Meetings Act

With Illinois’s 100th General Assembly in full motion, legislators have been quick to introduce new laws, which if passed would amend Illinois’s Freedom of Information Act (FOIA) and Open Meetings Act. It is doubtful that these bills will ever become law, but careful monitoring of laws affecting public bodies is an absolute necessity.

House Bill 3385 would amend the Freedom of Information Act to specify that each public body must designate one or more public officials or employees of the public body to act as the public body’s FOIA officer or officers. House Bill 3242 would require that the public body maintain a fee schedule for all fees charged by the public body for FOIA requests. Senate Bill 1977 would amend the definition of a public record and provide that all records of a public body are presumed to be open to inspection and copying, instead of just records that are within the public body’s possession or control.

As for the Open Meetings Act, House Bill 3626 would give anybody seeking to address a public body the right to do so at least once per meeting. This law would also void any rule limiting a person to speaking no more than once in a given number of days. However, the public body would be allowed to reasonably limit the amount of time given to a person to address public officials during an open meeting.

We will continue to provide timely updates as these bills move through the legislative process.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Thursday, February 9th, 2017

Proposed Law Amends Local Records Act to Include Personal Emails

Last week, a bill was introduced in the Illinois House of Representatives concerning personal emails and the Local Records Act. House Bill 2385, which would take immediate effect if passed, proposes to amend the Local Records Act to include personal emails as public records if the emails are in connection with the transaction of public business and are sent or received by an agency, employee, staff member, contractor, or officer of the agency. The individual sending or receiving an email would be required to forward the email to the agency-provided email address, or if no such address is provided, the individual must print the email and provide a copy to the agency. Under the proposed law, agency members are required to use their agency-provided email address for all public business. Agencies that provide email addresses for one or more individuals would also be required to provide email addresses for all officers of the agency.

We will continue to provide more updates as this bill moves through the legislative process.

For more information concerning public business and the use of personal email accounts, please see our Aug. 17, 2016 article: New PAC Opinion Concerns FOIA and Personal Email Accounts.


Kristin G. Good

Author: Kristin G. Good

Thursday, February 9th, 2017

Illinois Appellate Court Determines PSEBA Case

An Illinois appellate court recently decided a case concerning what constitutes an “emergency” under the Public Safety Employee Benefits Act (PSEBA). At issue was whether a firefighter’s injury, which occurred while he was lifting a disabled resident from the floor to the bed, happened during an “emergency.”

Under PSEBA, fighters and other public service employees are entitled to have their own and their family’s health insurance premiums paid if they can show that their catastrophic injury occurred during an officer’s response to fresh pursuit, during a response to what is reasonably believed to be an emergency, because of an unlawful act by another, or during the investigation of a criminal act. In the case at issue, all parties agreed that the firefighter sustained a catastrophic injury. The only issue was whether the injury occurred during an “emergency” as defined under PSEBA.

On August 15, 2009, the plaintiff responded to an “invalid assist” call for a disabled resident who needed help being moved from the floor to the bed. During the two previous years, the department had been dispatched to this address a total of 73 times for routine invalid assists. Even for invalid assist dispatches, the department required firefighters to respond with the same level of urgency as any other call. Additionally, the court even noted that the plaintiff subjectively believed that he was responding to an emergency on the date at issue. Upon arrival, the plaintiff saw that the disabled resident simply needed assistance moving from the floor to the bed. While he was assisting the resident, the plaintiff injured his shoulder.

In upholding the denial of benefits under PSEBA, the court noted that “even if the plaintiff subjectively believed that he was responding to an emergency, what he learned when he arrived confirmed that it was not an emergency. . . . Accordingly, the plaintiff could not have reasonably believed that he was responding to an emergency when he sustained his injury.”

As such, this case illustrates that emergency responses will lose any claim to benefits under PSEBA as soon as it is discovered that the emergency does not exist.


Jacob-D.-Caudill

Author: Jacob D. Caudill