Recent Court Decisions

On January 10, 2013, high school student B.O. shot Plaintiff Cleveland, another student, in the stomach at Taft Union High School (TUHS). Prior to the shooting, B.O. had described plans for committing acts of violence at school in several incidents during 2012 and 2013. The first was on a bus ride in February 2012 after a field trip, when B.O. described shooting someone at school and blowing up the auditorium.

The next school day after the bus incident, a threat assessment was initiated. The threat assessment team (TAT) included the principal, assistant principal, school psychologist, and superintendent. TUHS prepared a Threat Assessment Report after interviewing B.O., his mother, his guidance counselor, and faculty involved in the bus incident. The report rated B.O. as having “insufficient evidence of violence potential, sufficient evidence for the unintentional infliction of emotional distress upon others.”

Later incidents by B.O. involved drawings depicting a shooting at school, mentions of a hitlist, and warning classmates not to come to school multiple times. TUHS investigated these incidents but did not act on them. In December 2012, B.O.’s older brother obtained a shotgun. On January 9, 2013, B.O. warned a classmate not to come to school the next day and also told the classmate that he was going to kill Plaintiff. On January 10, 2013, B.O. took the shotgun to school and shot Plaintiff.

After the shooting, Plaintiff sued TUHS for negligence, premises liability, and negligent infliction of emotional distress. TUHS, as a public entity with some state immunity for injuries resulting from acts or omissions of its employees (akin to Illinois’ Local Governmental and Governmental Tort Immunities Act), filed a pretrial motion seeking to preclude evidence, opinion, or argument at trial about the sufficiency, accuracy, or frequency of TUHS's threat assessment. The trial court granted the motion in part but also concluded there were a range of things, not covered by the immunity, that TUHS could have done which the jury might find breached their duty of care toward Plaintiff.

During the trial, each side presented expert testimony on the effectiveness of TUHS’s threat assessment. The jury found that TUHS's employees were 54% responsible for Plaintiff’s injuries and the trial court entered a judgment for $2,052,000 against TUHS based on their employees’ negligence. TUHS appealed and claimed, in part, that its employees were immune under state law. The California appellate court disagreed with TUHS, finding that TUHS employees breached their duty of care to Plaintiff because 1) the threat assessment was not carried out by the TAT collectively, 2) the school resource officer should have been a core member of the TAT, 3) the TAT failed to communicate amongst themselves about B.O., 4) the TAT failed to adequately communicate with B.O.'s parent, 5) the TAT failed to recommend counseling to B.O.'s parent as an intervention technique, and 6) the TAT did not continue to collectively monitor B.O. and reassess his safety plan. Accordingly, the appellate court affirmed the trial court judgment and also ordered TUHS to pay Plaintiff’s costs on appeal.

This case, although not binding in Illinois, serves as a useful reminder of the limits of state law immunity and the diligence required when implementing threat assessments.

Michelle Yang, IASB Law Clerk
 

On October 26, 2021, Requestor submitted a Freedom of Information Act (FOIA) request on behalf of the Chicago Tribune to the City of Chicago Department of Law (Department) seeking copies of certain emails. On November 9, 2021, the Department provided copies of records but withheld a letter submitted by a private attorney on behalf of clients pursuant to section 7(1)(a) of FOIA. The Department argued that evidentiary rules prohibited disclosure of the letter because it concerned settlement negotiations. On November 11, 2021, Requester submitted a Request for Review to the Public Access Counselor (PAC) contesting the denial.

On July 22, 2022, the PAC issued a non-binding determination that the Department improperly denied the letter and requested that it provide Requestor with a copy. On August 26, 2022, the Department informed the PAC that it would not comply. The PAC subsequently issued this binding opinion on the matter.

The Department’s denial of the request was based on the premise that the letter in question documents privileged settlement negotiations and is prohibited from being disclosed by evidentiary and discovery rules. The PAC noted, however, that the letter does not propose or demand a settlement that would resolve the matter or request that the Department engage in negotiations concerning a possible settlement. Thus, the PAC found that the Department had not demonstrated that the letter reflects settlement negotiations encompassed by evidentiary and discovery rules. 

The PAC further reasoned that even if the letter could be construed to be part of a settlement negotiation, is not exempt under the FOIA exemptions the Department asserted. The PAC explained that Federal Rule of Evidence 408, Federal Rule of Evidence 501, Illinois Rule of Evidence 408, Illinois Rule of Evidence 501, Federal Rule of Civil Procedure 26(b), and Illinois Supreme Court Rule 201(b) are judicial rules governing discovery and the admission of evidence in court proceedings. Restrictions on the discovery of information and the admissibility of evidence in court proceedings are inapplicable to the public’s statutory right to obtain information pursuant to FOIA. Such rules do not provide a basis for denying records under section 7(1)(a).

The Department additionally cited Section 7(1)(f) of FOIA. The PAC noted that, to be exempt under section 7(1)(f), a record must be 1) inter-agency or intra-agency, and 2) pre-decisional and deliberative. The letter that the Department withheld was prepared by a private attorney on behalf of clients with interest independent from the Department’s interests. Because the letter is not an intra-agency or inter-agency communication, or a pre-decisional and deliberative record, it is not exempt from disclosure pursuant to section 7(1)(f) of FOIA.

The PAC ordered the Department to provide Requestor with a copy of the responsive letter.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Mary H. Bandstra, IASB Law Clerk
 

On July 6, 2022, Requestor submitted a Request for Review to the PAC complaining that the Board of Education of Decatur Public School District No. 61 (School Board) had violated OMA by discussing building a new grade school with COVID-19 relief funds in closed sessions under the section 2(c)(5) exception.

Section 2(c)(5) permits public bodies to close a portion of the meeting to discuss “the purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.”

After reviewing minutes and verbatim recordings from several closed meetings between October 21, 2021 and June 28, 2022, the PAC concluded that the School Board had exceeded the scope of the exception. While discussion about potential sites for the new school may be held in closed sessions, the broader discussion about building a new school with COVID-19 relief funds was beyond the limited scope of the exception.

The PAC ordered the public body to make publicly available the closed session verbatim recordings and closed session minutes of the meetings. The limited portions relevant to acquiring particular properties may be redacted.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Michelle Yang, IASB Law Clerk

 

In November 2014, while running for election to the Poway Unified School District Board of Trustees (Board), two individuals (Trustees) created public Facebook pages to promote their campaigns. After winning their elections, Trustees changed the descriptions of their pages to state they were now government officials, and they continued to use their Facebook pages to post content related to district business. One Trustee also created a Twitter page related to her official duties. In their posts, Trustees invited the public to fill out surveys, shared information about upcoming events, and reported on Board action. Trustees did not establish any rules of etiquette or decorum regulating how the public was to interact with the pages.

Constituents who frequently commented on Trustees’ posts included Christopher and Kimberly Garnier (Parents), who had children attending the district and had been active in the district community for years, regularly attending Board meetings and emailing the Board about their concerns. Parents began posting lengthy and repetitive comments on Trustees’ social media pages. Frustrated with Parents’ repetitive posts, Trustees began deleting or hiding the posts and Trustees eventually blocked Parents from the pages. Then, Trustees began using Facebook’s word filter feature to effectively prevent all verbal comments on the pages. Parents filed a Section 1983 suit alleging Trustees violated their First Amendment rights by blocking Parents from public fora (the social media pages) and sought damages and declaratory and injunctive relief.

The U.S. District Court for the Southern District of California (District Court) granted Trustees qualified immunity as to the damages claim but allowed the case to proceed. Following a bench trial, the District Court found that Trustees’ social media pages were designated public fora and that Trustees’ decision to block Parents was content neutral and intended “to enforce an unwritten rule of decorum prohibiting repetitious speech on their social media pages.” Even so, the District Court granted judgment to Parents and awarded costs because Trustees’ indefinite blocking of Parents was not narrowly tailored to avoid repetitive comments.

Trustees appealed, arguing that they closed any public fora they had created on their social media pages when they blocked almost all comments using word filters, so Parents’ case was moot. The Appeals Court did not buy this argument, noting that Facebook word filters did not stop the public from reacting to posts (e.g., with a “like” or emoticons) and that Twitter did not have word filters. The Appeals Court affirmed that Trustees’ social media conduct was sufficiently related to their official duties to mean that they constituted state action (even if the Board did not fund or authorize them) because their posts concerned or promoted district business and the pages did not contain any disclaimer that the “statements made on this web site reflect the personal opinions of the author” and “are not made in any official capacity.” The Appeals Court also affirmed that Trustees violated Parents’ First Amendment rights when they blocked Parents from the social media pages and that Parents were entitled to relief.

While the Appeals Court noted that not every social media account operated by a public official is a government account and that specific facts and circumstances must be weighed, this case is an important reminder of factors that board members should consider when operating social media pages, including but not limited to: how the page is described and used, how members of the public and government regard and treat the page, whether the page has any rules of etiquette and decorum, and whether the page contains any disclaimers.

On April 10, 2022, Requestor submitted a FOIA request to the Village of Chatham (Village) seeking the “names and applications of the candidates for” a vacancy on the Village Board of Trustees. The Village denied the request under Sections 7(1)(c) and 7(1)(f) of FOIA, arguing that the application process was confidential and that “[c]andidates’ resumes and solicitations for appointment to office contain information for the Village to evaluate their credentials; however this information is not readily available to the public and does not become public merely by inclusion with an application to the Village.” Eventually the Village provided Requestor with responsive records for the successful candidate who was appointed to the Board of Trustees, but it continued to deny responsive records for the unsuccessful candidates. Requestor then filed a Request for Review with the PAC.

Upon review, the PAC first considered and rejected the Village’s assertion that candidates’ submissions were not public records. Not only did the submissions directly relate to both Village business and the interests of the Village community, but they were received and possessed by the Village. Next, the PAC considered Section 7(1)(c) of FOIA, which exempts from disclosure “[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” To meet this exemption, the Village needed to demonstrate by clear and convincing evidence that the information at issue was highly personal or objectionable to a reasonable person and that the subject’s right to privacy outweighed any legitimate public interest in the information. The PAC held that the Village failed to meet this burden. Finally, the PAC considered Section 7(1)(f) of FOIA, which exempts from disclosure “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.” Again, the PAC held that the Village failed meet its burden because it did not demonstrate that the contents of the responsive records revealed any opinions concerning the candidates.

Based on the above, the PAC held that the Village violated FOIA by improperly withholding responsive records. The PAC directed the Village to provide the responsive records to Requestor, except for permissible redaction of individuals’ personal phone numbers, home addresses, personal email addresses, and signatures as “private information” under Section 7(1)(b) of FOIA. This opinion is binding only to the parties involved and may be appealed pursuant to State law.