Local Government Law Bulletin

Thursday, October 5th, 2017

Illinois Attorney General Releases 11th Public Access Opinion of 2017

The Office of the Attorney General recently released Public Access Opinion 17-011, which looked at whether a 9-1-1 call is beyond the reach of a Freedom of Information Act (FOIA) request.

A radio station sought to obtain two 9-1-1 recordings possessed by the Will County Sheriff’s Office in regard to the death of a 17-month-old child. The radio station filed two FOIA requests for the 9-1-1 calls on April 27, 2017, with the Will County Sheriff’s Office. The Will County Sheriff’s Office denied both requests for two stated reasons. First, the Will County Sheriff’s Office claimed that one recording was exempt from FOIA because it contained private information, in particular biometric identifiers. Second, the Will County Sheriff’s Office argued that the second recording was exempt from FOIA because the disclosure of the recording could impede the active investigation into the death of the child.

In regard to the first argument, the Office of the Attorney General determined that the common understanding of a biometric identifier was the measurement and analysis of a unique physical or behavioral characteristic that identifies a person. Because the 9-1-1 recording did not analyze caller’s voice to determine its identity, there were no biometric identifiers in the recording and therefore it was not exempt from the FOIA.

As to the argument that disclosure of the second recording could impede the active investigation, the Office of the Attorney General noted that the public agency must show a factual basis as to why disclosure would interfere with an ongoing criminal investigation. Finding that the Will County Sheriff’s Office did not provide enough facts to establish how it would interfere with the investigation, the Office of the Attorney General determined that the recording was not exempt from FOIA requirements.

In sum, the Office of the Attorney General found that a voice recording that did not involve an analysis of the voice to determine the speaker does not qualify as containing biometric identifiers and therefore is subject to FOIA requests. The Office of the Attorney General also found that a mere assertion that a disclosure would impede an ongoing criminal investigation, without a sufficient factual basis, is insufficient to exempt a record from FOIA requests.


Kelly A. Cahill

Authors: Kelly A. Cahill, Nathan Davidson

Wednesday, September 20th, 2017

Police Departments Required to Adopt Additional Policies for Officer-Involved Shootings

Recent changes went into effect for the Police and Community Relations Improvement Act (“Act”). The Act originally went into effect in 2016 and requires all law enforcement agencies to have a written policy addressing investigations into officer-involved deaths.

The amendment adds an additional requirement that law enforcement agencies must adopt a written policy mandating drug and alcohol testing of an officer involved in an “officer-involved shooting,” as soon as practicable, but no later than the end of the officer’s shift in which the shooting occurred.

Changes to drug and alcohol testing policies are typically considered a subject of mandatory union bargaining, and police departments should consider whether a discussion with any bargaining units may be necessary prior to implementing the changes. In this case, the new state law will preempt any request by a union to lower the mandatory policy requirements, but there may be considerations that a union may wish to address within a compliant policy.

Law enforcement agencies should review the Act’s additional requirements and should also consider how unions may be implicated by any policy change involving drug and alcohol testing.


Brad Stewart

Author: Brad Stewart

Friday, September 1st, 2017

Prevailing Wage Amendment Brings a Taste of the 21st Century to the Act

On August 18, 2017, Governor Rauner approved a bill that offers a minor but sensible modification to the Prevailing Wage Act. Public Act 100-0154 amends Section 9 of the Prevailing Wage Act that applies to those public bodies that use the Department of Labor’s determination of prevailing wages – that is, most public bodies. The Act permits the public body to post a hyperlink to the wage schedule for that body that is published on the Department of Labor’s website instead of requiring the body to publish the notice of determination in a newspaper of general circulation in the area.

Unfortunately, this bill does not free the public body from the requirement to mail a copy of its determination to any employer, association of employers or individuals or associations of employees who have asked for a determination of the rates, although this may be increasingly unnecessary with ready access by those parties to this data. However, at least by freeing public bodies of the newspaper publication requirement this amendment should result in a minor reduction in the local cost of administering the Act.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg

Friday, September 1st, 2017

Like It or Not, Driverless Vehicles Are Coming to a Municipality Near You

Last month, Governor Rauner approved a bill concerning local government regulation of “Automated Driving Systems equipped vehicles” (i.e. driverless cars). As driverless vehicles are no longer mere science fiction, the Illinois Legislature has made a preemptory move to maintain a uniform regulation of these vehicles.

Under the new law, units of local government, including home rule units, “may not enact an ordinance prohibiting the use of Automated Driving System equipped vehicles on [their] roadways.” Furthermore, “[n]o unit of local government, including a home rule unit, may regulate Automated Driving System equipped vehicles in a manner inconsistent with [the Illinois Vehicle Code].”

However, the law does give units of local government the ability to regulate Automated Driving Systems equipped vehicles for “traffic control purposes.”

The law defines an “Automated Driving System equipped vehicle” as “any vehicle equipped with an Automated Driving System of hardware and software that are collectively capable of performing the entire dynamic driving task on a sustained basis, regardless of whether it is limited to a specific operational domain.”


Jacob-D.-Caudill

Author: Jacob D. Caudill

Tuesday, August 15th, 2017

New Laws Seek to Consolidate Units of Local Government

Governor Rauner signed into law amendments to various existing laws that are intended to expand the consolidation of various units of local government. Part of the legislation expands the Local Government Reduction and Efficiency Division of the Counties Code to apply to all counties (it currently applies only to DuPage, Lake, and McHenry Counties). The amendments also better clarify how obligations of a dissolving unit of local government are administered and assumed by the absorbing unit of government.

An amendment to the Township Code removes the limit of townships to 126 square miles, thus making it possible for several townships to consolidate into one. Other amendments allow for more flexibility in township consolidation into other townships or into a municipality.

The scheduled effective date of the amendments is Jan. 1, 2018, although the effect of the amendments is conditioned on the passage of other pending bills.


Brad Stewart

Author: Brad Stewart

Monday, August 14th, 2017

New Law Creates Additional FOIA Exemptions

Earlier this month, Governor Rauner approved a bill creating additional exemptions under Illinois’s Freedom of Information Act. Public Act 100-0026 creates three new exemptions which allow public bodies to deny FOIA requests sent by incarcerated persons. Specifically, the bill amends Section 7 of the FOIA to include the following:

“ . . . [T]he following shall be exempt from inspection and copying:”

* * *

(e-8) Records requested by a person committed to the Department of Corrections or a county jail, the disclosure of which would result in the risk of harm to any person or the risk of an escape from a jail or correctional institution or facility.

(e-9) Records requested by a person in a county jail or committed to the Department of Corrections containing personal information pertaining to the person’s victim or the victim’s family, including, but not limited to, a victim’s home address, home telephone number, work or school address, work telephone number, social security number, or any other identifying information, except as may be relevant to a requester’s current or potential case or claim.

(e-10) Law enforcement records of other persons requested by a person committed to the Department of Corrections or a county jail, including, but not limited to, arrest and booking records, mug shots, and crime scene photographs, except as these records may be relevant to the requester’s current or potential case or claim.”

 

In sum, public bodies are exempt from disclosing the following records to incarcerated people:

  • Records that would risk harm or escape from a correctional facility
  • Records concerning the incarcerated person’s victim
  • The arrest records of other people.

As such, municipalities should keep this new law in mind whenever responding to FOIA requests from incarcerated persons.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Monday, July 24th, 2017

Illinois Attorney General Issues Two Binding Decisions Concerning FOIA

This month, the Attorney General’s Office released two binding Public Access Opinions concerning Illinois’s Freedom of Information Act. Specifically, both opinions (the eighth and ninth of 2017) concern a public body’s duty to respond to FOIA requests. Notably, one of the public bodies involved  is the Office of Governor Bruce Rauner.

In both opinions, FOIA requests were sent  seeking a variety of records. The request sent to the Governor’s office sought “emails that Deputy Governor Leslie Munger sent or received since she became Deputy Governor; and Munger’s daily schedule for the next six months.” The public bodies in both matters never released the requested records and failed to respond to the inquiries of the Public Access Counselor as to the status of the FOIA request.

As such, the Attorney General’s Office determined that both public bodies violated Section 3(d) of the FOIA, which requires that “[e]ach public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request, unless the time of the response is properly extended.”

While these opinions do not provide any new guidance, they do show that the Attorney General’s Office will not hesitate to issue a binding opinion against those that ignore Illinois’s FOIA, even the Governor’s Office.


Jacob-D.-Caudill

Author: Jacob D. Caudill

Monday, July 24th, 2017

Case Upholds Ordinance Prohibiting Unregistered Vehicles on Private Property

In mid-July, the Second Appellate Court upheld the Village of Round Lake Beach’s ordinance which provides: “It shall be unlawful to store any vehicle upon open private land unless such vehicle shall be duly registered for operation on public highways in the state…” Significantly, the Court made its decision on the limited issue of home rule authority which the Village possessed; it did not directly address if a non home rule unit would have the same valid police power.

However, a portion of the decision which addressed the reasonable relationship of the ordinance to a public interest could be cited as strong support for non home rule units to do the same: “It is reasonable to attack the problems associated with unused vehicles by prohibiting the unenclosed storage of vehicle that cannot be driven legally. Thus, the ordinance is a valid exercise of the Village’s police power.”

Our opinion is that this decision is strong support for municipalities to regulate vehicles on private property, but not an unlimited recognition of power. A municipality which already has or would like to implement an ordinance pertaining to inoperable and/or unregistered vehicles in open view on private property, is directed to review the public interest being served (i.e., reduction in vermin infestation, the aesthetics of the community, reduce risk of vandalism) and clearly articulate those interests in adopting or revising a similar ordinance.


Brad Stewart

Author: Brad Stewart

Thursday, June 22nd, 2017

Appellate Court Rules No Issue of Material Fact Regarding Municipality’s Immunity from Liability

Recently, the 4th District Appellate Court, in Monson v. City of Danville, 2017 Il App (4th) 160593, upheld a trial court’s granting of summary judgment, finding that no issue of material fact existed, regarding whether a local government employee was immune from liability against negligence and willful and wanton conduct claims filed by a pedestrian who tripped and fell on a concrete sidewalk. The Court held that under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/2-109 and 2-201, the government employee, and therefore the municipality, was immune from liability because the employee engaged in a discretionary act, executing policy regarding improving sidewalk conditions and enhancing the downtown area, when he decided not to repair the portion of the sidewalk on which the pedestrian tripped and fell. Discretionary acts “are those which are unique to the particular public office and involve the exercise of judgment.” Ministerial acts “are those . . . performed in a prescribed manner, in obedience to the mandate of legal authority, without regard to the exercise of discretion as to the propriety of the acts being done.”  Citing Kennel v. Clayton Township, 239 Ill. App. 3d 634 (4th Dist. 1992).

The Court further stated that whether the municipality had notice of the deviation was not the relevant issue, and noted that even if the government official had inspected the defect and decided to do nothing, he would still be immune from liability because he would have engaged in a discretionary function (even if the official’s determination could later be determined to be negligent). This ruling is consistent with a 2nd District case, Richter v. College of DuPage, where that court found that no issue of material fact existed where a government employee, and thus the municipality, was immune from liability because the employee’s actions in determining which sidewalk repairs to make were discretionary functions and policy determinations, and not ministerial functions.  Richter v. College of DuPage, 2013 IL App (2d) 130095.


Kristin G. Good

Author: Kristin G. Good

Thursday, June 22nd, 2017

Illinois Attorney General Issues Three More Public Access Opinions

This month, the Illinois Attorney General issued three binding Public Access Opinions concerning both Illinois’s Freedom of Information Act (FOIA) and the Open Meetings Act (OMA).

Public Access Opinion 17-004

In issuing its fourth binding Public Access Opinion of 2017, the Illinois Attorney General’s Office found that a municipality improperly went into closed session based upon Section 2(c)(11) of Illinois’s OMA. Under Section 2(c)(11) of the OMA, a public body may enter into closed session to discuss “[l]itigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.”

At issue was a municipality’s decision to enter closed session on the basis of “pending or probable” litigation to discuss the municipality’s continued participation in an intergovernmental agreement with an adjacent town. However, no case was currently pending, and the mayor had even stated that he “doubts there will be a lawsuit.” Additionally, no decision on whether the agreement would be altered or terminated had been made at the time the public body entered closed session. For these reasons, the Attorney General determined that the municipality’s closed session was not authorized by Section 2(c)(11) of the OMA.

While this binding opinion does not necessarily provide anything new, it does show that the “probable or imminent” litigation exemption will be enforced stringently.

Public Access Opinion 17-005

In the fifth binding Public Access Opinion of 2017, the Attorney General found that a municipality violated the FOIA by failing to disclose statistical data upon receiving a request for traffic counts from roadway monitoring operations.

The municipality claimed that this data was exempt under Section 7(1)(f) of the FOIA. Section 7(1)(f) exempts “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are formulated . . . .” The municipality argued that the statistical data should be exempt from disclosure because it is in preliminary draft form. However, after reviewing the responsive records, the Attorney General determined that “[t]he statistical information is purely factual, including numbers representing the traffic volume for [specific sections of roadways].” As such, the Attorney General found that the requested records were not exempt from disclosure. In so finding, the court reiterated that “simply because the data may be subject to review and possible revision does not make the data itself preliminary or deliberative communications within the scope of Section 7(1)(f).”

Public Access Opinion 15-006

In the sixth binding Public Access Opinion of 2017, the Illinois Attorney General’s office found that the Illinois Department of Corrections (IDOC) violated the FOIA. Specifically, a reporter with the Associated Press sent a FOIA request to the IDOC seeking records “sufficient to show the job titles, locations, and numbers of employees in each category which the Department of Corrections considers essential and who would be required to report to work in the event of interruption in state employee pay and the closing of some offices and services.”

In denying the request, the IDOC simply stated “to the extent [documents] exist, [the documents] are exempt from production pursuant to Section 7(1)(m)” and/or “Section 7(1)(f) [of FOIA].” On review, the Public Access Counselor sought a copy of the records in question for a confidential assessment, however, the IDOC refused to release the records to the Public Access Counselor.

As such, the Attorney General determined that the IDOC was in violation of Section 9(a) of the FOIA for failing to provide a “factual basis supporting either of its claimed exemptions.” Additionally, the IDOC was also found to be in violation of Section 9(c) for failing to provide copies of the records for confidential review. Interestingly, the Attorney General also took issue with how the IDOC worded its denial, specifically with the language stating “to the extent the records exist . . . .” Pursuant to Section 3(d) of the FOIA “[e]ach public body shall, promptly comply with or deny a request for public records within 5 business days after its receipt of the request, unless time for response is properly extended under subsection (e) of this Section.” The Attorney General went on to state that “[t]he options available under FOIA do not include responding in the hypothetical, by claiming that any responsive documents that may exist are exempt without acknowledging the existence of responsive records.

Although the Public Access Counselor was unable to review the records at issue, the Attorney General held that the asserted exemptions did not apply. Specifically, the exemption relating to attorney-client privilege and attorney work product (Section 7(1)(m)) did not apply because the IDOC did not provide “any factual basis, supporting legal authority, or objective indicia demonstrating that any responsive records are in fact (1) communications with an attorney acting as a legal advisor and relating to legal advice; or (2) material created in preparation for trial that would reveal the theories, mental impressions or litigation plans of the attorney.”

Additionally, the Attorney General found that the exemption concerning predecisional and deliberative materials (Section 7(1)(f)) did not apply because the IDOC failed to provide the Public Access Counselor “with a factual basis for [the IDOC’s] assertion that the records at issue constitute records in which opinions are expressed, or actions or policies are formulated.”


Jacob-D.-Caudill

Author: Jacob D. Caudill