image5.gif
Lighting the way...
IASB.com

My Account

 


 

SCHOOL LAW


Recent Court and Agency Decisions
Tools: Email

Freedom of Information Act - FOIA

Withholding Student Records
Univ. of Ky. v. The Kernel Press, Inc., Case No. 16-CI-3229 (Ky. Cir. 2017)
Defendant The Kernel Press (The Kernel), the student-run newspaper of Plaintiff University of Kentucky (UK), requested from UK copies of all records detailing a professor’s resignation within the context of a sexual assault complaint filed by two students. UK refused to disclose records containing personally identifiable student information under the Family Educational Rights and Privacy Act (FERPA), reasoning that disclosure would be an invasion of the students’ personal privacy. The Kernel appealed to the Kentucky Attorney General, who ordered UK to disclose the records with student identifiers redacted. UK appealed to Kentucky circuit court.

The Court found that while FERPA generally permits disclosure of employment records directly related to an employee in their employment capacity, these records also directly related to the students, making them educational records protected by FERPA. As such, the Court found them exempt from disclosure under the Kentucky Open Records Act. The Court also held that the records could not be disclosed in redacted form because redaction would not offer adequate protection, as details in the records would make it easy for one to identify the students with reasonable certainty.

Although not binding in Illinois, this case reminds public bodies that investigative documents regarding an employee may also be educational records under FERPA if the records also directly relate to a student. Additionally, educational records that cannot reasonably be redacted to support a student’s privacy rights do not need to be released.

Cassandra Black, IASB Law Clerk

Compensation disclosure
Public Access Opinion 16-012
For the second time two calendar years, the PAC has told public bodies that the amount of compensation paid by the public body is subject to disclosure unless it is otherwise exempted.

An individual submitted a FOIA request to the Housing Authority of the City of Freeport for the names and titles of staff members receiving bonuses, as well as the amount of the bonuses. The Authority denied the request in its entirety, asserting that the requested records were exempted under: FOIA Section 7(1)(b) as a “unique identifier” that could be considered personal financial information; FOIA Section 7(1)(c) as personal information that could constitute an “unwarranted invasion of personal privacy”; and the Personnel Record Review Act (820 ILCS 40/). Unpersuaded by these attempts at claiming exemptions, the PAC held that the requested records were subject to disclosure under FOIA Section 2.5 because employee compensation relates to the use of public funds. The PAC ordered the Authority to immediately provide the FOIA requester with records sufficient to show the bonuses paid.

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

Failure to Respond to a FOIA Request
Public Access Opinion 16-011
For the sixth time this calendar year, the PAC has told public bodies they must respond to FOIA requests. An individual submitted a FOIA request via email to the Housing Authority of Cook County for all correspondence between the Authority and the Buckeye Community Hope Foundation from March 1, 2015 to July 25, 2016. Eleven business days later, the Authority emailed the FOIA requestor, stating it had questions regarding the FOIA request. The Authority eventually obtained written clarification from the FOIA requester regarding the records sought, however the Authority never actually responded to the FOIA request. The Authority also failed to respond to the PAC’s inquiries. The PAC found the Authority violated Section 3(d) of FOIA by failing, within five business days after receiving the FOIA request, to provide the requested records, deny the request in whole or in part, or to notify the FOIA requestor in writing that it was extending the time for a issuing a response. The PAC ordered the Authority to immediately provide all records responsive to the FOIA requester, subject only to any permissible redactions under Section 7. Again, the bottom line here is that public bodies must respond to FOIA requests within the time permitted per statute.

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

Failure to Respond to a FOIA Request
Public Access Opinion 16-010
For the fifth time this calendar year, the PAC has told public bodies they must respond to FOIA requests. An individual submitted a FOIA request via email to a school district for various documents pertaining to an accounting, consulting and technology firm the school district did business with. The same day, the requestor received an automatic email response from the school district acknowledging receipt of the FOIA request and extending the timeline to respond by an additional five business days to ten total business days, as permitted by Section 3(e) of FOIA. Thirty-one days after submitting her FOIA request, the requestor had yet to receive a response from the school district. The school district also failed to respond to the PAC’s inquiries. The PAC ordered the school district to immediately provide all records responsive to the FOIA requester, subject only to any permissible redactions under Section 7. Again, the bottom line here is that public bodies must respond to FOIA requests within the time permitted per statute.

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

Redacting and Withholding Information Concerning a Criminal Complaint Filed by Public Official
Public Access Opinion 16-009
Though a public body provided copies of and properly exempted portions of some records responsive to FOIA requests from multiple requestors for information concerning a criminal complaint filed by a then-public official, the public body violated FOIA by improperly redacting and withholding other responsive records.

In redacting/withholding certain records, the public body invoked exemptions under FOIA Sections 7(1)(b), 7(1)(c), and 7(1)(d)(v). Section 7(1)(b) exempts private information from disclosure, and the PAC found that the public body properly withheld the account identification number and Uniform Resource Locators (URLs) for the public official’s Facebook page as private information. It found, however, that the public official’s Facebook and Skype account names could not be withheld because they are akin to or derived from his legal name.

Section 7(1)(c) exempts from disclosure personal information which would constitute a clearly unwarranted invasion of personal privacy. The PAC found the public body properly withheld the public official’s birth date, which it considers “highly personal by its very nature.” It also found the public body properly withheld portions of statements the public official made to police regarding the extortion crime he was a victim of, as well as the identities of suspects who were private citizens. The PAC, however, found that the public body should have disclosed the amounts of money involved in the extortion, especially because the public official had publicly acknowledged that he was extorted.

Section 7(1)(d)(v) exempts from disclosure law enforcement records that would disclose unique investigative techniques and which would result in demonstrable harm to the public body. Here, the public body withheld records pertaining to unique investigative techniques for gathering information from electronic and social media sources. The PAC found that disclosing such information would result in harm because it could enable perpetrators to evade detection. In contrast, the PAC found that the public body had improperly redacted information regarding routine investigative steps. Finally, the PAC found the public body had properly refused to disclose search warrants when the search warrants themselves expressly prohibited their disclosure.

The PAC ordered the public body to immediately disclose the non-exempt portions of additional records responsive to the requests. This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Unduly Burdensome Requests
Public Access Opinion 16-008
A public body violated FOIA by improperly asserting that the requestor’s request was unduly burdensome under Section 3(g). The requestor requested all emails between a specific employee of the public body and a private planning/architecture firm during a one month period. The public body responded by asserting the request was unduly burdensome because it had discovered 50 responsive emails comprising nearly 174 pages of material, and it asked the requestor to narrow her request. When a public body asks a requestor to narrow his/her request because it believes the request is unduly burdensome, this constitutes a denial under Section 3(g) of FOIA. Using a balancing test to determine whether complying with a request is unduly burdensome, the PAC asked whether the public interest in disclosure of the requested records outweighs the burden of compliance on the public body. The PAC found the public body “did not demonstrate with specificity how the process of retrieving and reviewing these records would constitute a significant burden on its operations” such that it would outweigh the public interest in disclosure. The PAC ordered the public body to immediately disclose the requested emails, subject to appropriate redactions.

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

Freedom of Information Act - Duty to Conduct Reasonable Search for Responsive Records Includes Search of Employees’ Personal Email Accounts for Communications Pertaining to the Transaction of Public Business
Public Access Opinion 16-006
CNN submitted a FOIA request to the Chicago Police Department (CPD) for “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 named CPD officers for specific date ranges. In response, CPD searched for emails on the officers’ CPD email accounts which contained the complete name “Laquan McDonald.” CPD then disclosed over 500 pages to CNN without citing any exceptions or explanations for the records. CNN filed a Request for Review with the Public Access Counselor (PAC), alleging the records produced were not responsive and that CPD did not conduct an adequate search for responsive records. During the PAC’s review, CPD confirmed it had not searched the 12 officers’ personal email accounts for responsive records and argued that emails on such accounts are not “public records” subject to FOIA. The PAC disagreed, finding that “CPD’s interpretation would undercut the principle that public bodies act through their employees, by excluding from the definition of ‘public records’ communications sent or received by employees of a public body on personal devices or accounts, regardless of whether the communications pertain to the transaction of public business. Such an interpretation erroneously focuses not on the content of a communication, but on the method by which it is transmitted.” CPD countered that FOIA provides no mechanism for it to compel employees to grant CPD access to their personal email accounts. The PAC advised that CPD itself did not necessarily need to conduct an automated search of the officers’ personal email accounts; it could instead meet its obligation to search the personal email accounts by initially ordering the CPD officers themselves to search their own personal email accounts and turn responsive records over to CPD. The PAC ordered CPD to do just that; it also ordered CPD to expand the scope of its search of CPD email accounts to include other search terms, such as alternate name spellings, the names of officers involved, the incident number, the location of the incident, and a physical description of Mr. McDonald.

The take away here is that public bodies must conduct a reasonable search for public records responsive to a FOIA request, which includes searching public employees’ communications on personal devices or accounts for records pertaining to the transaction of public business.

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

Failure to Respond to a FOIA Request
Public Access Opinion 16-005
For the fourth time this calendar year, the PAC has told public bodies they must respond to FOIA requests. An individual submitted a seven-part FOIA request to a Village for various positions, names and salaries of Village employees and contractors, as well as billing and payments made to contractors or received from legislative counsel. The Village did not respond to the FOIA request within five business days, extend its timeline for a response under Section 3(e), notify the FOIA requestor that the Village was treating the request as voluminous in accordance with Section 3.6, or deny the request in writing. The Village then repeatedly failed to respond to subsequent requests by the Public Access Bureau that it respond to the FOIA request. The PAC ordered the Village to immediately provide all records responsive to the FOIA requester, subject only to any permissible redactions under Section 7. Again, the bottom line here is that public bodies must respond to FOIA requests within the time permitted per statute.

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

IHSA Not a Public Body Subject to FOIA; Seeking IHSA Records from a School District Under Section 7(2) Fails When Requestor Does Not Establish Records are “Public Records”
Better Government Association v. Illinois High School Association and Consolidated High School District 230, 2016 IL App (1st) 151356 (6-24-16).
Plaintiff Better Government Association (BGA) issued a FOIA to the Illinois High School Association (IHSA) for all of IHSA’s contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012-2013 and 2013-2014 fiscal years. IHSA responded by stating it was not subject to FOIA because it was a 501(c)(3) nonprofit charitable organization. BGA then issued a FOIA to Consolidated High School District 230 (District 230) for the same records, seeking them under FOIA Section 7(2), which provides that “a public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.” 5 ILCS 140/2. District 230 responded that it did not have any of the requested records in its possession.

Next, BGA filed a complaint in circuit court alleging both IHSA and District 230 violated FOIA, asking that the court declare IHSA to be a subsidiary “public body” subject to FOIA because it performs a governmental function on behalf of its member schools, and asking that the court order IHSA and District 230 to produce the requested records. The circuit court dismissed BGA’s complaint. Applying a three-part test articulated in Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence (64 Ill.App.3d 94 (1978)), the circuit court held that IHSA is not a subsidiary public body covered by FOIA. The circuit court further held that FOIA Section 7(2) did not apply to District 230 because IHSA did not perform a governmental function on its behalf.

BGA appealed and the appellate court affirmed the circuit court’s dismissal. In so doing, the appellate court also relied upon the Rockford Newspapers, Inc. test to hold that IHSA is not a subsidiary public body covered by FOIA. It further held that BGA could not obtain the IHSA records through District 230 via FOIA Section 7(2) because BGA had not established that the IHSA’s records were “public records.”

Freedom of Information Act: failure to respond to a FOIA request
Public Access Opinion 16-004
For the third time this calendar year, the PAC has told public bodies they must respond to FOIA requests. On April 5, 2016, a Chicago Sun-Times Staff Reporter (“Requestor”) submitted a FOIA request via email to the Chicago Police Department (CPD) for various district-by-district sworn CPD staffing levels and personnel orders. On April 20, 2016, CPD’s FOIA Officer sent an email to Requestor with an attached letter dated April 13, 2016 that stated CPD was extending the time period for its response under Section 3(e) by five business days. On April 22, 2016, Requestor emailed CPD to note that 10 business days had passed and to ask when the documents would be ready. On April 25, 2016, CPD’s FOIA Officer responded via email, stating he was waiting for records from another department and would update Requestor on April 29, 2016. On May 5, 2016, Requestor emailed CPD for a status update. On May 11, 2016, CPD’s FOIA Officer emailed Requestor to request an extension for a response. Requestor then requested a specific date on which the records would be ready, but CPD did not respond with a specific date. Even upon request by the Public Access Bureau, CPD did not provide Requestor with a response to his FOIA request. The PAC found that CPD violated Sections 3(a) and 3(b) of FOIA by failing, within five business days, to: respond to Requestor’s FOIA request; provide the requested records; properly extend the timeline for its response per Section 3(e); or deny the request in whole or in part. The PAC ordered CPD to immediately provide all responsive records to Requestor, subject only to any permissible redactions under Section 7 of FOIA. The bottom line here is that public bodies must respond to FOIA requests within the time permitted per statute.

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

Withholding Records Relating to a Public Body’s Adjudication of Employee Grievances and Disciplinary Cases Under exemption 7(1)(n)
Peoria Journal Star v. City of Peoria, 2016 IL App (3d) 140838 (4-18-16).
A Peoria Journal Star reporter issued a FOIA to the City of Peoria for reports authored by a particular Peoria Police Department officer, but the City refused to disclose one of two responsive reports, asserting said report was exempt under Section 7(1)(n) because it was “a report of an employee grievance and served as the factual basis which initiated two internal disciplinary cases against two officers of the Peoria Police Department.” Upholding lower decisions by the Public Access Counselor and the trial court, the appellate court held that the report was not exempt under Section 7(1)(n) because the report “was created well before any adjudication took place and existed independent of any adjudication. That the report later led to disciplinary action against two officers is insufficient to make it exempt under FOIA.”

Failure to Respond to a FOIA Request
Public Access Opinion 16-003
For the second time this calendar year, the PAC has told public bodies they must respond to FOIA requests. Following receipt of a FOIA request, a school district properly responded within 5 business days to extend its timeline for a response by an additional 5 business days pursuant to FOIA Section 3(e). Thereafter, however, the school district failed to respond to the FOIA request within the time permitted for the extension, and then repeatedly failed to respond to subsequent requests by the Public Access Bureau that it respond to the FOIA request. The PAC ordered the school district to immediately provide all records responsive to the FOIA requester, subject only to any permissible redactions under Section 7 of FOIA. The bottom line here is that public bodies must respond to FOIA requests within the time permitted per statute.

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

Withholding Crime Scene and Autopsy Photographs Under Exemption 7(1)(c)
Public Access Opinion 16-002
An individual submitted a FOIA request to the Illinois State Police (ISP) for records pertaining to the death of his daughter, including all crime scene and autopsy photographs. ISP responded by providing certain information but withholding the crime scene and autopsy photographs as personal information which would constitute a clearly unwarranted invasion of personal privacy under Section 7(1)(c). The PAC found that 7(1)(c) did not apply here because an individual’s personal privacy interest ceases to exist upon death. Further, the PAC held that a decedent’s surviving family members possess a separate personal privacy interest in their close relative’s death-scene images, that such individuals may consent to the disclosure of information in which he or she has a personal privacy interest, and that ISP did not articulate a legal rationale justifying withholding the photographs from the decedent’s father, who was also executor of her estate.

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

Failure to Respond to a FOIA Request
Public Access Opinion 16-001
An individual submitted a FOIA request to the Chicago Police Department (CPD) for various First Amendment-related worksheets and for communications issued by the Crime Prevention Information Center generated from August 2014 through October 2014. CPD did not respond to the FOIA request within 5 business days, extend its time for a response under Section 3(e), or deny the request in writing. CPD then repeatedly failed to respond to subsequent requests by the Public Access Bureau that it respond to the FOIA request. The PAC ordered CPD to immediately provide all records responsive to the FOIA requester, subject only to any permissible redactions under Section 7 of FOIA. The bottom line here is that public bodies must respond to FOIA requests within the time permitted per statute.

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

Timely response to FOIA request; unduly burdensome requests
Public Access Opinion 15 -011
A request for certified payroll records was made of a public body. The public body did not respond in the required 5 day timeframe and it asserted that the records request was unduly burdensome. The PAC has found that a public body must respond within the required 5 days and, if the public body asserts the request as unduly burdensome, it must provide the requestor an opportunity to narrow the FOIA request.

If a public body wants to assert that a records request is unduly burdensome, it should contact its board attorney for assistance to respond within the required timeframes and narrow the request to something manageable.

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

Information concerning outside counsel
Public Access Opinion 15 -010
The public body received a FOIA request for lists of outside counsel, including the agencies represented and a description of their work. The lists provided by the public body are not exempt by section 7(1)(m) of FOIA. The lists contain only general information about the legal services provided for the public body. The lists do not contain litigation plans, mental impressions, legal advice, or legal theories. Additionally, rates paid to outside counsel are subject to disclosure because the records pertain to the use of public funds by the State.

Compiling information already in the public body’s possession into a different format in order to respond to a FOIA request does not constitute the creation of a new record.

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

Shanell M. Bowden, IASB Law Clerk

Unwarranted invasion of privacy exemption
Public Access Opinion 15 -009
The public body must demonstrate by clear and convincing evidence that records are exempt from disclosure pursuant to section 7(1)(c). A 7(1)(c) personal privacy exemption claim requires the balancing of the public’s interest in disclosure of certain information against the individual’s privacy interest. Close family members of a decedent may have a right of privacy in the disclosure of records concerning the decedent. To determine if the public interest outweighs any privacy rights four factors are considered and weighed: (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.

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

Shanell M. Bowden, IASB Law Clerk

Redacting Attorney/Client Discussions
Public Access Opinion 15-008
The public body violated section 3(d) of FOIA by failing to respond to a request for records within five business days without a written agreement to extend the time for compliance.

The calendar the public body produced qualifies as a public record under section 2 (c) of FOIA. An employee of the public body prepared and maintained the calendar. The public body used the calendar to schedule official meetings and other governmental events. Additionally, an unspecified number of members of the public body had access to the calendar.

The public body violated the requirements of FOIA by failing to demonstrate by clear and convincing evidence that portions of the records are exempt from disclosure under section 7(1)(f)(exemption for predecisional and deliberative material) or section 7(1)(m). The public body did not meet its burden to redact information pursuant to 7(1)(m) because it failed to demonstrate that the redacted information could reveal the substance of confidential attorney-client discussions. The simple presence of an attorney in a meeting is not enough to demonstrate that section 7(1)(m) applies.

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

Shanell M. Bowden, IASB Law Clerk

Compensation disclosure
Public Access Opinion 15-006
The amount of compensation paid by the public body is subject to disclosure unless it is otherwise exempted. The amount of compensation by itself is not exempt from disclosure under section 7(1)(b) of FOIA because it is not a “unique identifier” that could be considered private information. Additionally, the compensation information directly relates to the public body’s use of public funds and is also subject to disclosure pursuant to Section 2.5 of FOIA.

Residential addresses may be withheld under section 7(1)(b) but post office box numbers must be disclosed because they do not uniquely identify an individual or constitute a home address.

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

Shanell M. Bowden, IASB Law Clerk

Freedom of Information Act – Settlement Agreements
Public Access Opinion 15 -004
Confidentiality provisions in settlement agreements that directly relate to a public body’s use of public funds will not exempt the public body from having to provide such records under FOIA. FOIA specifically provides that all settlement agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public. In addition to the issue above, when responding to FOIA requests, public bodies must perform searches calculated to uncover the requested documents.

The take away here is that public bodies (a) may not use confidentiality agreements as a shield from responding to FOIA, and (b) must perform reasonable searches calculated to uncover the requested documents.

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

Freedom of Information Act - Board member emails under FOIA
City of Champaign v. Madigan, 992 N.E.2d 629 (Ill.App.4th, 2013)
Whenever a district provides email addresses to individual board members, all emails sent to individual email addresses are subject to disclosure under the Freedom of Information Act. Read the entire decision here: www.state.il.us/court/Opinions/AppellateCourt/2013/4thDistrict/4120662.pdf

Freedom of Information Act: terms of agreements
Public Access Opinion 14-016
This PAC opinion, binding on the parties, determined that the Metropolitan Pier and Exposition Authority (Authority) improperly denied an opportunity for a FOIA requester to review lease agreements for conventions and trade shows held at McCormick Place. In addition, the Authority argued that the information is exempt as confidential proprietary information. The PAC rejected these arguments. The takeaway for school districts is that the PAC will likely require the disclosure of agreements pursuant to a FOIA request.

Freedom of Information Act: employee’s employment application and résumé
Public Access Opinion 14-015
At issue in this PAC opinion, binding on the Village of Winnetka, was whether the Village had to disclose an employee’s employment application and résumé pursuant to a FOIA request. Finding yes, the PAC rejected the Village’s argument that the employee’s application and résumé qualified for the exemption for personal information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The PAC determined that the employee’s education, training, and experience were all factors that bear on his ability to perform his public duties and, even if they did not, the Village did not sustain its burden of demonstrating by clear and convincing evidence that the exemption was applicable. The PAC also found that the application and résumé did not qualify for the exemptions for performance evaluations or deliberative material. The exemption for private information applied to allow the Village to redact unique identifiers and private information listed in section 7(1)(b) of FOIA, e.g., social security number, telephone number, and personal e-mail. The takeaway for school districts is that the PAC will likely require the disclosure of an employee’s application and résumé (with private information redacted), unless the district can demonstrate by clear and convincing evidence that the application and résumé contain information that is highly personal.

Freedom of Information Act: failure to respond to a FOIA request
Public Access Opinion 14-014
This opinion, binding on the parties, demonstrates that the failure to respond to a FOIA request violates FOIA. The Public Access Counselor directed the City of Harvey to immediately provide the records, subject only to permissible redactions and exemptions, and to issue timely responses to future FOIA requests. The takeaway is that the PAC will rule against a public body if the public body ignores FOIA requests.

Freedom of Information Act: responding to requests
Public Access Opinion 14 -011
“It has been more than a month since I filed the FOIA request shown below.”

These were the words of two reporters who filed several FOIA requests to a public body that went unanswered. While the public body continued to indicate it would provide an answer to the requesters and the Public Access Counselor, it did not do so nor did it properly extend its time to respond. The public body was directed to “take immediate and appropriate action to comply with this opinion by providing records responsive to [the FOIA requests].”

See PAOs 14-007 and 14-010 for the rules public bodies must follow when responding to FOIA requests.

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

Freedom of Information Act: responding to requests
Public Access Opinion 14 -010
This opinion is similar to PAO 14-007.

TRY: When a public body responds to a FOIA request, it must conduct a “reasonable search tailored to the nature of a particular request” and “reasonably calculated to uncover all relevant documents.” It “cannot limit its search to only one record system if there are others that are likely to turn up the requested information.”

TRY AGAIN: A public body cannot treat records request #2, which is identical to records request #1, as unduly burdensome when it never responded to records request #1. FOIA states that “repeat requests from the same person for the same records that are unchanged or identical to records previously provided (here, records from request #1 were never provided) or properly denied (again, records from request #1 were improperly withheld) shall be deemed unduly burdensome… .”

NARROWED REQUEST: A public body does not have to treat a narrowed request as another new FOIA request. That means that if the requestor tries to narrow the request in response to the public body’s explanation, it is not another new FOIA request but simply an extension of the conversation about the current request. While a requestor’s narrowing of his or her request does not need to be treated as a new request, the public body should continue to make efforts to respond to it.

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

Freedom of Information Act: “private information”
Public Access Opinion 14 -08
Photographs are not “private information” nor do they contain “biometric identifiers.

A police department denied a FOIA request for an officer’s basic headshot photographs. The department claimed the photographs were “private information” under FOIA because they contained “biometric identifiers.”

The PAC disagreed and ordered the photographs to be disclosed. FOIA does define “private information” to include “biometric identifiers.” But, the term “biometric identifiers” does not include the term “photographs.” Photographs are public records under FOIA and must be released when requested.

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

Freedom of Information Act: responding to requests
Public Access Opinion 14 -07
“Try, discuss, and explain…” is the theme of this PAC opinion.

TRY: When a public body responds to a FOIA request, its search for the requested records must be reasonably “tailored to the nature of a particular request” and “reasonably calculated to uncover all relevant documents.” And, the public body should be able to show that it searched all records management systems that are likely to turn up the requested information.

DISCUSS: if a public body wishes to treat a request as unduly burdensome, then it shall extend an opportunity to the requestor to discuss reducing the request. If that does not work, then timely asserting an undue burden during the timeframes outlined in the statute is required.

EXPLAIN: If the search returns no responsive records for the request, the public body should explain why no records were found. The explanation should demonstrate that there were no alternative methods to find the requested records or why that it was not practical to search other sources for the requested information.

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

Freedom of Information Act: Duty to Disclose Public Records in the Possession of a Public Body
Public Access Opinion 14 - 06
A public body must disclose public records in its possession that pertain to public business. While requested records in this opinion were in the possession of a Student Government Association (SGA), the SGA was managed and controlled by a Student Activities Center, which was ultimately controlled by the public University. The PAC found the University’s ultimate control over the SGA made SGA’s records subject to disclosure under FOIA.

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

Freedom of Information Act – disclosing contracts for governmental functions
Public Access Opinion 14 - 05
A public agency improperly redacted (blocked out) financial terms from contracts that it provided in response to a FOIA request. Any records that document public money being paid to entities under contracts to perform a governmental function must be disclosed under FOIA.

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

Freedom of Information Act (FOIA) exception
Nelson v. Kendall County, 2014 IL 116303 (May 22, 2014).
The Ill. Supreme Court has ruled that the office of the State’s Attorney in each county is subject to the Freedom of Information Act (FOIA). The court further opined that States Attorney’s offices are not of the judicial branch of government but the executive branch (the judicial branch is exempt from FOIA). School districts and their local school counsel may find this decision helpful in obtaining copies of documents affecting them which have been prepared, issued, or retained by their local State’s Attorney.

FOIA responding to requests
Sebring v. Des Moines Independent Community School District, Case No. CE71688, (Polk County, Iowa).
The following summary is not applicable in Illinois but may be of interest to school officials because of its FOIA discussion.

An Iowa school district and its officials were sued for invasion of privacy by a former superintendent, Ms. Sebring. She alleged that the school district released private emails of a sexual nature belonging to her in response to a FOIA request. The private emails contained the same search terms as the terms used for responding to the FOIA request.

The court held that the school district should not have released these private emails, and it will allow Sebring to move forward with her case. The court noted that when the school district uncovered the emails, it had evidence of her misuse of the district’s technology, which could have led to discipline. In Iowa, documents related to disciplinary matters are exempt from disclosure under its public records law.

While this opinion is not binding in Illinois, it is instructive to school officials to review their FOIA requests carefully, and if warranted with local counsel, for private information that should not be released. It also serves as a reminder to school officials to use school technology for school-related purposes only.

Settlement contracts – confidentiality provisions
Public Access Opinion 14 - 04
Confidentiality provisions entered into by public bodies are contrary to the specific language of Section 2.20 in FOIA and the legislative intent underlying that section of the law. The PAC found such provisions in settlement agreements are not enforceable and must be released pursuant to FOIA requests.

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

Scope of exemption of legal invoices
Public Access Opinion 14 -02
A public body received a FOIA request for its legal bills. It denied the request citing several exemptions under FOIA.

The PAC instructed the parties that records containing the following information must be disclosed:

a. general descriptions of the nature of the services performed by an attorney,

b. dates on which work was performed,

c. the initials of the attorney performing the work,

d. the numbers of hours billed, and

e. the corresponding dollar amount billed for each entry.

The PAC did inform the parties involved that any descriptive entries contained in legal invoice records that describe services rendered, which reveal privileged attorney-client communications may be redacted (withheld or blacked-out on a document that contains exempt and non-exempt records) under section 7(1)(m) of FOIA.

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

Freedom of Information Act (FOIA) exception
Kalven v. City of Chicago, CPD, 2014 IL App (1st) 121846, --- N.E.3d ----, 2014 WL 930844 (Ill.App. 1 Dist., March 10, 2014).
The plaintiff sought disclosure of certain documents related to complaints of police misconduct within the Chicago Police Department (CPD) in the form of Complaint Registers (CR) and Repeater Lists (RL). RLs were documents about officers who amassed the most misconduct complaints. CRs were related to CPD’s completed investigations into allegations of police misconduct. The issue on appeal was whether the CRs and RLs were “adjudicatory” and exempt under Section 7(1)(n) of FOIA.

On appeal the Court held that both CRs and RLs must be disclosed. They are not exempt under Section 7(1)(n) because neither were part of any adjudication. In its ruling, the Court held that it was possible that another FOIA exemption may apply to the CRs and RLs, e.g., the deliberative process exemption. However, whether the deliberative-process exemption applied would be resolved after an “in camera” (private) inspection by the trial court judge after the case was sent back to the trial court for more proceedings.

In camera inspections and FOIA exemptions: Note that the public body bears the burden of establishing that public records fall within a claimed FOIA exemption. To meet the burden, and to assist the court in making its determination, the public body must provide a detailed justification for its claimed exemption, addressing the requested documents specifically and in a manner allowing for the party that is requesting the records to rebut.

Public bodies are not obligated under FOIA to answer general questions
Chicago Tribune Company v. Department of Financial and Professional Regulation, 2014 Ill.App. (4th) 130427 (Ill. App. 3-6-2014).
A newspaper submitted a FOIA request to the Department of Financial and Professional Regulation (Department) for the number of claims made against 22 named physicians. The Department presented evidence that it did not keep such a record in the ordinary course of business and urged that it was not required to create it. The Department did not waive this argument by failing to assert it during proceedings before the Public Access Counselor. The Court, quoting from earlier decisions, found that a request to inspect or copy must reasonably identify a public record and not general data, information, or statistics. FOIA “does not compel the agency to provide answers to questions posed by the inquirer.” Here, the Department was not obligated under FOIA to answer the newspaper’s general inquiry question since this would have required the creation of a new record.

Principles guiding the award of attorney fees for a FOIA violation
Uptown People's Law Center v. Department of Corrections, 2014 Ill.App. 1st 130161 (2-27-2014).
The Illinois Department of Corrections (IDOC) violated the Freedom of Information Act (FOIA) by failing to timely comply with a records request from the Uptown People’s Law Center (Uptown). IDOC turned over the requested records two weeks after Uptown filed a petition in court. FOIA requires a trial court to award attorney fees to any person who “prevails” in a proceeding to enforce FOIA. The question was whether a party can “prevail” under FOIA absent a court order. An earlier decision from the Second District Court of Appeals found that a party does not “prevail” under FOIA unless a court issues an order requiring compliance. Here, the First District found that a plaintiff may obtain attorney fees under FOIA regardless of the extent that he or she is successful in a court action. It held that court-ordered relief is not a prerequisite to an award of attorney fees under FOIA. The Court still denied Uptown an award of attorney fees. It cited an Illinois Supreme Court decision holding that an attorney representing him- or herself is not entitled to an award of attorney fees. Uptown was represented by in-house lawyers and, thus, was not required to spend additional funds specifically to pursue the FOIA request. The Court found that Uptown was not entitled to receive attorney fees that were never incurred.

Performance evaluations
Copley Press, Inc. v. Bd. of Ed. for Peoria Sch. Dist. No. 150, No. 3-05-0011 (Ill.App.3, 8-25-05).
A newspaper filed a FOIA request seeking two performance evaluations of the superintendent and a letter from the board to the superintendent explaining its discontent. If the documents fell into an exemption listed in FOIA, they would be “per se” exempt from disclosure. Here the requested documents were properly placed in the superintendent’s personnel file and were thus exempt from disclosure.

Employment Contracts
Gazette Democrat v. Southern Illinois University, NO. 4-06-1014 (Ill.App.4th Dist. 2007)
In August 2006, plaintiffs, Jerry Reppert and the Gazette Democrat, filed a complaint against defendants, Southern Illinois University (SIU) and SIU chancellor Walter V. Wendler, seeking disclosure of the employment contacts of several SIU employees. The Plaintiffs argued that the FOIA compelled disclosure of the requested documents. Defendant, SIU prevailed in the trial court; however the 4th District appellate court reversed in favor of the Gazette Democrat. The court held that the statutory definition of “public record” included the information contained in the employment contracts at issue in the case stating that contrary to defendants' (SIU) suggestion, the mere fact that personnel files are per se exempt from disclosure ... does not mean that the individual contracts are also per se exempt simply because they are kept in those files. The court declined to follow Copley Press in as much as it purported to include an employment contract as exempt from FOIA.

Audio tape recording
DesPain v. The City of Collinsville, No 5-07-0300 (May 9, 2008).
A circuit court in Madison County, Illinois (5th Appellate District) erred in concluding that public body followed Freedom of Information Act when it refused plaintiff permission to examine original audio tape recording of the public body’s meeting and instead only offered to make plaintiff a copy of the recording for a fee. The public body refused to allow the plaintiff to listen to the original tape for concerns of preservation of the original tape. However, the Appellate Court stated that it cannot ignore the intent of the legislature as evinced by the plain language of the Freedom of Information Act. The Act states that public bodies must make public records available for inspection and copying, unless they can avoid doing so by invoking an exception that is provided in the Act. The fact that a public body lacks the facilities for the public to listen to audiotapes is not a valid basis upon which to deny a request to inspect a tape-recorded public record.

Employment Contracts
Mark O. Stern, Appellant, v. Wheaton-Warrenville Community Unit School District 200, Appellee. Opinion filed May 21, 2009.
UPDATE: The Illinois Supreme Court held that an employment contract is not the kind of record the General Assembly intended to keep from public view and does not fall within the exemption for personnel files in section 7(1)(b) of the Freedom of Information Act (FOIA).

The Illinois Supreme Court agreed that remand for the circuit court to privately inspect the contract is appropriate, but disagreed as to the scope of the inspection. It directed the circuit court to determine whether it contains personal information (such as a social security number or bank account information) which, if disclosed, would constitute an unwarranted invasion of the superintendent’s personal privacy. That information must be deleted. See 5 ILCS 140/8.

But, the Court was clear that the circuit court's inspection is not to become a battle of details where the circuit court determines whether each individual paragraph or subsection bears on the superintendent’s public duties.

Therefore, an employment contract, as a whole, bears on the employee’s public duties and, moreover, constitutes a “contract dealing with the expenditure of public or other funds of public bodies”; (5 ILCS 140/2(c)(vii)) and, with the exception noted above for personal information, the superintendent’s employment contract must be disclosed in its entirety.

HISTORY OF THIS CASE:

In Stern v. Wheaton-Warrenville Community Unit School District 200, No. 107139. (November 26, 2008), the Illinois Supreme Court granted a petition for leave to appeal to determine whether the trial court properly denied plaintiff's FOIA request for a copy of the superintendent's contract. The trial court found that the superintendent's employment contract was per se exempt under FOIA because it was part of his personnel file.

Before the petition for leave to appeal was filed, the Appellate Court reversed the trial court and found that public employees' employment contracts were subject to disclosure under FOIA with respect to information bearing on public duties. The Appellate Court also found that there were issues of material fact regarding whether any portion of the subject contract was exempt under FOIA.

The Appellate Court issued its opinion on June 9, 2008. Then, it modified and superseded its opinion when it denied a rehearing on July 11, 2008. After that, the Appellate Court withdrew its opinion on July 25, 2008 and modified it on August 12, 2008. The petition for leave to appeal to the Illinois Supreme Court was granted on November 26, 2008.

IASB's October 2008 Newsbulletin's Recent Developments in School Law column discussed the issues in this case and why they are important for school officials to be aware of, understand and watch.

Internal investigation documents
Gekas v. Williamson , (4th Dist. July 20, 2009)
In this case, plaintiff alleged police brutality on a routine traffic stop. During the proceedings he requested internal investigation documents from the police. The police declined on the grounds the requested documents were part of a personnel file and exempt from FOIA (Freedom of Information Act). At trial, the Court of Appeals concluded that only "personal information" in police personnel files are completely exempt from disclosure, merely placing documents within personnel files does not automatically confer exemption.

Records subject to disclosure as public records
State ex rel. Johnson v. Oberlin City School Dist. Bd. of Edn., (Ohio App. 9 Dist., 12/10/09) .
THIS AN OHIO CASE THAT MAY BE OF INTEREST TO IASB MEMBERS; IT IS NOT PRECEDENTIAL IN ILLINOIS.

The Ohio Court of Appeals has held that a plaintiff seeking access to the school board member's individual evaluations of the school superintendent, failed to demonstrate a clear legal right to the evaluations. The Court found that because the board only kept the composite evaluation, and did not retain the individual evaluations, the individual evaluations were not "kept" records subject to disclosure as public records.

Using school email systems for personal email
Schill v. Wisconsin Rapids School District 2010 WL 2791918, Wis.
Are teacher e-mails sent through the school district’s email system considered public records?

The Supreme Court of Wisconsin recently held they were not records under Wisconsin’s Public Record Law, and therefore that they were not subject to disclosure. The court found that materials are public records only if they have a connection with a governmental function. Under certain situations, such as when a disciplinary investigation is occurring, personal e-mails would be subject to disclosure, but this was not the case here.

Though not applicable in Illinois, the Freedom of Information Act 5 ILCS 140/ has the same connection to a governmental function that is discussed in this opinion. School officials and employees should take note of this case and not use school email systems for personal e-mails or information to avoid future conflict. For more information, please see the Illinois Attorney General website on OMA and FOIA.

Nika Grabavoy, Extern, Valparaiso University School of Law

Withholding information prohibited from disclosure by state or federal law
Chicago Tribune v. Board of Trustees of the University of Illinois, ---F.3d--- No. 11-2066 (7th Cir., May 24, 2012)
The Tribune sought to gain access to information regarding the identities and addresses of the parents of applicants to the University of Illinois. They submitted a request citing the Illinois Freedom of Information Act, which the University denied. The University cited an exemption allowing them to withhold information prohibited from disclosure by state or federal law as the reason for the denial. The court did not allow the case to proceed, stating that a federal court would not have subject-matter jurisdiction. Because the case was about interpreting the Illinois Freedom of Information Act, a state law of Illinois, the case would need to be heard by an Illinois State Court.

Jared Boyer, IASB Extern

Personally identifying information
Heinrich v. White, No. 11-CH-558 (IL App. 2d. August 27, 2012) Reversed.
Heinrich submitted a Freedom of Information Act (FOIA) request for access to administrative decisions by the Department of Motor Vehicles (DMV) regarding licenses that were suspended or revoked by the Secretary of State (SOS). Heinrich also requested the DMV decisions within one year. This request sought documents that were not yet created, but it also sought records that did exist. The SOS denied Heinrich’s FOIA request because (1) the information contained in the documents was private, and (2) the requested documents did not exist.

Under 2-123 (f-5) of the Ill. Vehicle Code, the SOS cannot disclose or make otherwise available any personally identifying information obtained by the SOS in connection with a driver’s license, vehicle or title registration record. However, this section does not include information like vehicular accidents, driving violations, and driving status. Under section 7 of the FOIA, personal information like driver’s license numbers or home addresses are exempt from disclosure.

The appellate court concluded that the SOS should have turned over the documents with the personal information redacted. A FOIA request cannot be dismissed because part of a request is invalid, and although the documents contained private information, it could be redacted (blacking-out private information). While the trial court decided that the redacted documents were likely useless, the appellate court found that it is not the trial court’s job to decide if redacted documents are useless.

The SOS also argued that the production of the documents would be burdensome. However, the appellate court offered that to prove that a request is burdensome, the elements that must be present are: (1) compliance with the request must be unduly burdensome, (2) there must be no way to narrow the request, and (3) the burden on the public body must outweigh the public interest. The case was reversed and sent back to the lower court to review the burden of Heinrich’s request under this test and Heinrich’s continued need for the information.

Rachel Prezek, IASB Law Clerk

Fines
The Rock River Times v. Rockford Public School District 205, - N.E.2d -, (Ill. App. 2nd, Oct. 3, 2012); 2012 WL 4554295.
A school principal wrote a rebuttal to a separation of employment letter from the superintendent. A local newspaper requested the copy of the rebuttal letter under the Freedom of Information Act (FOIA). The school denied disclosure under section 7(1)(C) for personal privacy and 7.5(q), which prevents disclosures otherwise prohibited under the Personnel Record Review Act. The school sent the office of Public Access Counselor (PAC) a preauthorization request indicating the intent to deny disclosure under the two exemptions under the FOIA. PAC addressed both exemptions and found that neither was applicable to the school. The Illinois Press Association then sent the school a letter asking them to reconsider the denial of releasing the letter. The school responded by asserting a third exemption under the FOIA. This exemption was section 7 (1) (n), which exempts records relating to a public body’s adjudication of an employee grievance or disciplinary case. The newspaper did not wait to hear from PAC concerning the third exemption and filed suit. After filing suit, the school released the letter to the newspaper on their own accord.

In filing suit, the newspaper was now looking to collect attorney’s fees and to impose a civil penalty on the school for their delay in disclosure. The school did not have to pay the newspapers attorney’s fees because the newspaper did not prevail. In order to prevail, the newspaper had to have received judicially sanctioned relief. The school released the letter without any direction from the court and the newspaper did not prevail. A civil penalty was imposed on the school according to section 11 (j) of the FOIA. The court found that the school willfully and intentionally failed to comply with the FOIA and was fined $2,500.

Rachel Prezek, IASB Law Clerk

Attorneys’ fees
Fagel v. The Department of Transportation, 2013 IL App (1st) 121841, - N.E.2d -, (Ill. App. 1st , 5/28/2013).
Plaintiff requested an Excel spreadsheet of IDOT’s red light camera enforcement system. Plaintiff was doing research and writing for a national report on the effectiveness of red light camera technology. IDOT produced an Excel spreadsheet in a locked version.

FOIA language is broad enough to require IDOT to produce unlocked electronic copy of the Excel spreadsheet to allow Plaintiff to fully exercise functions of the Excel program. An award of $12,561 in reasonable attorney’s fees and costs was allowed by Section 11(i) of FOIA.

Providing copies
Public Access Opinion 10-1
A public body referred a FOIA requester to a responsive document without making the requested copy, stating that the document was available for inspection and review. This was not a sufficient response to the FOIA request, which requested a copy. FOIA requires public bodies to provide a copy on request.

Disclosure of “directory information”
Public Access Opinion 12-3
Names of State University students and graduation information were categorized by the University as “directory information.” Directory information is not exempt from disclosure under Sections 7(1)(a),7(1)(b), or 7(1)(c) of FOIA.

Designating FOIA officer and responding to requests
Public Access Opinion 13-5
A public body is required to have one or more FOIA officers designated and acting at all times and to provide notice of the procedures for obtaining records to the public in accordance with the requirements of the Act. A public body did not properly respond to a citizen’s FOIA request. The opinion reiterates: (1) that it is a “fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act" (5 ILCS 140/1), and (2) that the procedures for responding to a FOIA request are clear under 5 ILCS 140/3(d). It states the following: Each 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 for response is properly extended under subsection (e) of this Section. Denial shall be in writing as provided in Section 9 of this Act. Failure to comply with a written request, extend the time for response, or deny a request within 5 business days after its receipt shall be considered a denial of the request. A public body that fails to respond to a request within the requisite periods in this Section but thereafter provides the requester with copies of the requested public records may not impose a fee for such copies. A public body that fails to respond to a request received may not treat the request as unduly burdensome under subsection (g).

Availability of records through discovery
Public Access Opinion 13-17
The availability of records through discovery (during the litigation process) does not affect a person’s right to access records under FOIA.

Records that are in the possession of a contractor
Public Access Opinion 13-18
Records that are in the possession of a contractor that is performing a governmental function for a public body are public records of the public body. The public body may not charge a requester any fees for the contractor to locate and retrieve such public records when the request is a non-commercial request.

Return to Court Decisions

 


  

Mandatory Board Training
Click on Banner for More Information

Although the IASB Web site strives to provide accurate and authoritative information, the Illinois Association of School Boards does not guarantee or warrantee the accuracy or quality of information contained herein.

Copyright 1999-2017 by the Illinois Association of School Boards. All rights reserved.
IASB Privacy Policy Statement