Illinois Attorney General Issues Third Binding Opinion of 2017

June 2, 2017

Last week, the Illinois Attorney General’s Office issued its third  binding Public Access Opinion of 2017. In dispute was whether a sanitary district was exempt from disclosing contracts, budgets, and invoices with a company, Veolia, pursuant to section 7(1)(g) of Illinois’s Freedom of Information Act. For reference, Section 7(1)(g) exempts information which would disclose trade secrets.

At issue was whether the sanitary district had properly redacted 1,470 pages of records. These reductions included “most of the substantive financial terms of the contractual agreements, including but not limited to the annual base fee that the District is required to pay Veolia and information concerning modifications to that fee, as well as indemnity, liability, and insurance provisions. The District also redacted from the invoices the amounts that Veolia billed the District and the payment terms. In addition, the District redacted from the annual budgets submitted by Veolia the proposed monthly amounts and other total amounts to be paid to Veolia, as well as itemized costs of various services and expenses.” In so redacting, the sanitary district emphasized that it was prevented from disclosing such material because of a confidentiality clause in the contract with Veolia and asserted that Section 7(1)(g) exempted the requested material from disclosure.  The Section 7(1)(g) exemption reads as follows:

(g) Trade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested.

However, the Attorney General rejected this exemption as applicable, because the confidentiality agreement specifically allowed for the disclosure of information that was “required to be disclosed by operation of law.” Specifically, the Attorney General found that Section 2.5 of FOIA and the Illinois Constitution compelled disclosure. Under Section 2.5 “[a]ll records relating to the obligation, receipt, and use of public funds of the State units of local government, and school districts are public records subject to inspection and copying by the public.” Additionally, Article VIII, Section 1(c) of the Illinois Constitution states that “[r]eports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.”

As such, the Attorney General found that the sanitary district violated the Freedom of Information Act, as the Illinois Constitution and Section 2.5 trumped any reliance on the confidentiality clause.