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Recent Court and Agency Decisions
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Disclosure of Contractor’s Employees’ Names on Payroll Records
Public Access Opinion 17-010
The City of Rockford (City) violated FOIA by improperly redacting employees’ names from certified payroll records when disclosing them in response to a FOIA request. On May 22, 2017, an individual submitted a request for copies of certified payroll records for a specific City project by a specific City contractor. The City promptly responded by stating the FOIA request was approved in its entirety and by providing copies of the certified payroll records, but the City redacted the contractor’s employees’ names, addresses, social security numbers, and driver’s license numbers from the records. Driver’s license numbers are exempt as “private information” under Section 7(1)(b) of FOIA, and Section 2.10 of FOIA permits a public body to redact contractor’s employees’ addresses, telephone numbers, and social security numbers from certified payroll records submitted to a public body under the Prevailing Wage Act. However, the City erred when it redacted the employees’ names, which are not exempt from disclosure. Moreover, the City had stated the FOIA request was approved in its entirety and it did not accurately state that it had partially denied the FOIA request (by making redactions) nor explain why redactions were made. The PAC ordered the City to immediately disclose the contractor’s employees’ names contained within the requested certified payroll records.

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 17-009
The City of Carlinville (City) violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request. On March 18, 2017, an individual submitted a request for copies of various purchase card statements and cell phone statements since October 1, 2016, as well as copies of proof that elected officials completed FOIA and OMA training. Receiving no response, on March 28, 2017, the requestor requested the PAC review the City’s failure to respond. The PAC found that the City violated Section 3(d) of FOIA by failing to provide the requested records or to respond in writing to the FOIA request. The PAC ordered the City to immediately provide all records in response to the FOIA requestor, subject only to any permissible redactions under Section 7.

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

Disclosure of Information Related to State Employees Designated as Essential
Public Access Opinion 17-006
A public body violated FOIA by improperly denying a request. A requestor submitted a request to the Illinois Department of Corrections (IDOC) asking for 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.” IDOC denied the request, claiming that “to the extent documents exist, [the documents] are exempt” under Section 7(1)(m) and 7(1)(f), but did not provide a detailed factual explanation supporting its assertion of either exemption.

Under Section 7(1)(m), records are exempt from disclosure when they contain communications of attorneys and provide “[c]ommunications between a public body and an attorney . . . representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public[.]”

Records are exempt under Section 7(1)(f) when they are “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.”

The PAC found IDOC’s response was improper, as the validity of the asserted exemptions could not be determined without confirmation that responsive records exist. Additionally, IDOC did not sustain its burden of demonstrating that the records qualified for exemptions under 7(1)(m) or 7(1)(m). The PAC ordered the public body to immediately disclose the records in response to the FOIA requestor.

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

Cassandra Black, IASB Law Clerk

Statistical Data is Not Exempt from Disclosure under Section 7(1)(f) of FOIA
Public Access Opinion 17-005
A public body violated FOIA by improperly denying a request under Section 7(1)(f). The requestor submitted a FOIA request to the Village of Oak Park (Village) asking for “the traffic counts from the roadway monitoring operations conducted on 10/25/16, 10/26/16 for the following roads: Washington Blvd, Madison Street and Jackson Blvd” and “the traffic counts from the roadway monitoring operations conducted on 11/11/16 for Madison Street.” The Village denied the request under Section 7(1)(f), claiming that “the traffic counts are in draft form and have not been publicly released.”

Section 7(1)(f) of FOIA exempts from disclosure “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.” Factual information is not exempt from disclosure unless the information is inextricably intertwined with a deliberative process in a way that its disclosure would reveal the deliberative process.

The PAC found that although the traffic counts being requested were part of a preliminary traffic study, they are purely factual and the public body did not sustain its burden of demonstrating that the traffic counts were inextricably intertwined with a deliberative process or that their disclosure would reveal any aspect of any deliberative process, thereby violating the requirements of FOIA. The pubic body was directed to take immediate and appropriate action to disclose to the requestor a copy of those portions of the traffic study containing the traffic counts that were requested.

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

Cassandra Black, IASB Law Clerk

Improper Closed Session Discussion of Legal Matters Under Exception for Pending, Probable or Imminent Litigation
Public Access Opinion 17-004
A public body violated Section 2(a) of the Open Meetings Act when it improperly relied on Section 2(c)(11) to discuss in closed session matters related to an intergovernmental agreement at its February 20, 2017 meeting. Section 2(a) requires all meetings of public bodies to be open to the public unless the subject of the meeting is covered by one of the limited exceptions under 2(c). Section 2(c)(11) permits public bodies to close a portion of the meeting 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.” If there is no litigation pending, the public body must have reasonable grounds to believe that litigation is more likely than not to be instituted or is close at hand.

The PAC found that during the closed session, the public body did not focus on litigation, but rather focused on its course of action with respect to the intergovernmental agreement, which is outside the scope of the exception. The PAC ordered the public body to make publicly available the closed session verbatim recording of the meeting and take necessary action as soon as practical to comply with the directives of the opinion or initiate administrative review under Section 7.5 of OMA.

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

Cassandra Black, IASB Law Clerk

Failure to Respond to a FOIA Request
Public Access Opinion 17-008
The Office of the Governor (Governor’s Office) violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request. On March 10, 2017, an individual submitted a request via email for documents concerning “emails that Deputy Governor Leslie Munger sent or received since she became Deputy Governor; and Munger’s daily schedule for the next six months.” Ten days later, the requestor sent a follow-up email stating she had not received a response to her FOIA. Continuing to receive no response, the requestor sent six emails between April 18, 2017 and May 4, 2017 inquiring about her FOIA request. On May 5, 2017, the requestor still had not received a response from the Governor’s Office and requested the PAC review the matter. The PAC forwarded the Request for Review to the Governor’s Office twice but, as of the date of this binding opinion, had not received a response.

The PAC found that the Governor’s Office violated Section 3(d) of FOIA by failing to appropriately respond to a FOIA request. The PAC ordered the Governor’s Office to immediately provide all records in response to the FOIA requestor, 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 17-007
The City of Benton (City) violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request. On February 17, 2017, an individual submitted a request for “agendas and meeting minutes for Benton Airport for calendar years 2013, 2014 & 2015.” Within five days, an Airport Board Member responded to request a five day extension to substantively respond, stating the Airport Board had not appointed a FOIA director yet. On March 11, 2017, the requestor had yet to receive a response and requested the PAC review the City’s failure to respond. Next, the City told the PAC that “the Benton Municipal Airport” is a separate entity from the City and therefore the City was not responsible for responding to FOIA requests directed to the Airport.

The PAC found that the City violated Section 3(d) of FOIA by failing to provide the requested records or to respond in writing to the FOIA request. The PAC reasoned that though the Airport Board Member sent the requestor a letter on February 17, 2017, FOIA does not allow a public body to extend the timeline for response for the reason stated in the letter (that the Airport did not have a FOIA director). Moreover, the PAC was not persuaded that the City and Airport are separate entities, and instead found that the Airport is “City-owned property.” Therefore, the City is the public body ultimately responding to the FOIA request. The PAC ordered the City to immediately provide all records in response to the FOIA requestor, subject only to any permissible redactions under Section 7.

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

Financial Terms of Contracts, Billing Invoices, and Budget Documents Related to a Public Body’s Use of Public Funds Are Not Exempt under Section 7(1)(g)
Public Access Opinion 17-003
A public body violated FOIA by improperly redacting financial terms of contracts, billing invoices pursuant to those contracts, and financial terms from annual budgets, as well as improperly withholding its budget ordinances in their entireties. The City Clerk of the City of Taylorville submitted a FOIA request to Taylorville Sanitary District (TSD) for copies of all contracts between the District and Veolia Water North America—Central, LLC (Veolia) since 2010, as well as copies of any invoices from Viola during this time frame, and copies of the yearly budgets prepared and approved by TSD for the same time period. TSD furnished copies of 1,470 pages of records to the requestor but redacted most of the substantive financial information in the records and but did not include a partial denial letter identifying the reasons for the redactions. The requestor filed a Request for Review with PAC, complaining that TSD improperly redacted most of the information contained in the records. In response to an inquiry from PAC, TSD stated that the reason for redacting or withholding information was because the information was exempt from disclosure under Section 7(1)(g), because its agreement with Veolia “contains a confidentiality clause and that trade secrets, commercial and financial information was and continues to be exchanged pursuant to the agreement, including the confidentiality provisions, and that is the basis of the claim the information is proprietary, privileged and confidential.”

The PAC found that TSD violated Section 9(a) of FOIA by not providing the requestor with a partial denial letter stating the factual basis for its redaction or withholding of records. The PAC also found that TSD violated Section 7(1)(g) because though TSD claimed the information in dispute is confidential under a confidentiality clause in the agreement with Veolia, the agreement expressly requires confidential information to be clearly designated in writing as confidential, and none of the information at issue was so marked. Additionally, the confidentiality provision of the contract clearly states that it does not apply to information that is “required to be disclosed by operation of law.” Under Article VIII, Section 1(c) of the Illinois Constitution of 1970, “[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.” Additionally, Section 2.5 of FOIA states that “[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.” The records at issue directly relate to the District’s use of public funds and are, therefore, required to by disclosed, making the confidentiality provision on which TSD based its assertion of Section 7(1)(g) expressly inapplicable. The PAC ordered TSD to take immediate and appropriate action by disclosing to the requestor unredacted copies of the records, as well as unredacted copies of the budget ordinances that were not originally provided.

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

Cassandra Black, IASB Law Clerk

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