Recent Court Decisions

The Village of Mount Prospect (Village) violated FOIA by improperly denying a FOIA request from a journalist.

On January 3, 2022, Requestor, on behalf of a local newspaper, submitted his FOIA request to the Mount Prospect Police Department (Police Department). The request sought a copy of an email that a retiring police chief from the Police Department sent to the rest of the employees.

The request was denied by the Village’s FOIA officer pursuant to section 7(1)(c) of FOIA the next day. The officer described the email as “very personal” and “the Chief’s last heartfelt message to his team upon his retirement.” An amended response was sent later that day with a disclosed copy of the email with most of the contents redacted pursuant to section 7(1)(c) of FOIA.

On January 14, 2022, Requestor submitted the copy of the email to the PAC along with a Request for Review disputing the redactions. Requestor said that his newspaper was informed that the “goodbye email” the retiring police chief sent to the Police Department contained information about the Police Department. The Village responded to the Request for Review by arguing that the redactions were justified under section 7(1)(f) of FOIA in addition to section 7(1)(c). They also said that the email was not a public record subject to the requirements of FOIA and that releasing an unredacted version of the email would be an invasion of personal privacy, because the contents contained personal thoughts and opinions of the police chief.

Section 7(1)(c) of FOIA exempts “[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The PAC noted that the email in question, which was sent while the police chief was employed with the Police Department, discusses Police Department policies and procedures as well as employee conduct.

Section 7(1)(f) of FOIA exempts “[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 is publicly cited and identified by the head of the public body.”

The PAC argued that the Village’s argument for redacting the email based on section 7(1)(f) did not hold up because in order to qualify for exemption that the records must be “actually related to the process by which policies are formulated.” The email was not relevant in this way according to the PAC.

The PAC also noted that the police chief was still employed with the Police Department at the time of the email, which means that the opinions expressed in the email were in fact public records and not personal opinions.

For these reasons, the PAC directed the Village to send the Requestor an unredacted copy of the email, with the exception of personal email addresses and phone numbers.

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

In the case of Houston Comm. College System v. Wilson, the Houston Community College’s Board of Trustees adopted a public resolution issuing a “disciplinary censure” against one of its elected trustees, David Wilson, for conduct “not consistent with the best interests of the College” and “not only inappropriate, but reprehensible.” Specifically, Mr. Wilson publicly complained of ethical and bylaw violations by the Board, arranged robocalls to constituents of certain trustees to publicize his views, hired a private investigator to determine the residency of a trustee, and filed multiple lawsuits against the Board, costing it considerable sums of money to defend. 

Mr. Wilson challenged the board’s censure of him in court, claiming his First Amendment rights were violated when the Board issued the “disciplinary censure” against him. Mr. Wilson did not claim the contents of the censure resolution were false or defamatory. The Court dismissed his claim, finding that the Board’s mere verbal censure (even if called a “disciplinary censure”) did to rise to the level of an “adverse action” necessary to obtain relief. The Court noted this country’s long tradition of publicly censuring lawmakers for their misconduct, stating that elected officials are expected to "shoulder a degree of criticism about their public service.” The Court held that the Board’s speech in the form of a censure against
Mr. Wilson was not actionable because it did not deter Mr. Wilson, also an elected official, from exercising his own right to speak. Nor did the censure deny Mr. Wilson any privilege of his office or prevent from doing his job as a board member. Finally, the Court noted its ruling was limited to a government body’s censure of one of its members. It stated there could be other cases where a mere verbal reprimand or censure could still be actionable under the First Amendment, including government official reprimands of students or employees.

The City Council of the City of Sumner (City Council) held an improper remote meeting on January 11, 2022, by not providing login instructions or a link to the meeting.    

On January 14, 2021, Requestor submitted a Request for Review to the PAC because she was concerned about the accessibility of the City Council meeting that was held on January 11. The mayor of Sumner and the head of the water department said that she was unable to attend the meeting because it was on Zoom. Requestor asked the head of the water department about OMA, and he told her to contact the police chief.

Requestor said that a picture of the meeting agenda was taken the day before. No zoom link was included in the agenda. Requestor messaged the police chief for the link, which she received. When Requestor joined the meeting, the City Council had already started the meeting. Requestor was able to discuss the letter she sent but was told by the mayor that her time was up after 5 minutes. Requestor listened to the rest of the meeting.

Requestor attached a photograph of the paper agenda posted on the door of the Sumner City Hall as well as a screenshot of her text messages with the police chief. The agenda indicated that the meeting was held on Zoom, but a link was not provided. Instructions on how to access the meeting were not provided either.

Section 7(e) of OMA states that, “48 hours' notice shall be given of a meeting to be held pursuant to this Section.” The PAC held that because the meeting agenda failed to include a link or any login instructions for the Zoom meeting, the City Council did not give proper notice. The City Council told the PAC that members of the public could attend in person, however the location on the agenda only indicated that it was a Zoom meeting. The PAC also held that the City Council violated Section 7(e)(9) of OMA by not providing an audio or visual recording of the meeting. Section 7(e)(9) of OMA requires public bodies to “keep a verbatim record of all their meetings in the form of an audio or video recording.”

For these reasons, the PAC directed the City Council to include all remote access information in future meeting agendas, indicate whether in-person attendance is allowed, and make audio or video recordings of future meetings as well.

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

The Village of Melrose Park Police Department (Department) violated FOIA by improperly denying a FOIA request from the Chicago Alliance Against Sexual Exploitation (CAASE).

On November 17, 2021, Requestor, a Senior Paralegal for CAASE, submitted a request to the Department on behalf of one of her clients who reported a sexual assault to the Department in April. Requestor sought copies of “all records created and maintained by [Department] regarding [the client’s] report and [the Department’s] investigation, including but not limited to any and all supplements and handwritten notes. (Emphasis in original.)”

The Department denied the request the following day. The Department cited sections 7(1)(d)(ii) and 7(1)(d)(vii) of FOIA in their denial letter. In the letter to Requestor’s attorney, the Department stated that the records “are related to an ongoing investigation and/or proceeding[,]” and that “the disclosure of these records may reasonably interfere with the…investigation in this matter.”

Section 7(1)(d)(ii) of FOIA says that records held by a public body are exempt if they would, “interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by law enforcement[.]” Similarly, section 7(1)(d)(vii) of FOIA states that records that “obstruct an ongoing criminal investigation by the agency that is the recipient of the request” are exempt from disclosure as well.

The PAC held that the Department failed to provide a specific reason as to why the requested records should be exempted from disclosure. The PAC stated that the Department did not demonstrate how the records related to any "active administrative enforcement proceeding[.]" The PAC said that the Department also did not establish that a criminal investigation was ongoing nor did it even demonstrate how the disclosure of the requested records would obstruct such an investigation.

The PAC noted that section 2.15(a) of FOIA requires municipalities to disclose certain arrestee information, and that the Department failed to show why disclosing this information would obstruct an investigation or potentially harm law enforcement personnel. For these reasons, the PAC held that the Department violated FOIA by refusing to disclose the requested records and ordered them to do so.  

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

The Jersey Community Unit School District Board of Education (Board) did not violate OMA when it held a remote meeting on September 16, 2021.

Requestor submitted a Request for Review on September 17, 2021, to the PAC alleging that the Board did not hold a proper meeting. The Board held its meeting on Zoom and did not have any in-person attendance for the public. Requestor provided the PAC with a link to the Board’s livestream video recording of the meeting as well as a copy of the agenda. The agenda explained that, “[d]ue to the increasing [Covid-19] metrics in the community and upon the recommendation of local officials, the Board may participate by audio or video conference without the physical presence of a quorum of the members due to the determination that an in-person meeting is not practical or prudent due to the current health emergency.”
Requestor noted that the Board held in-person meetings earlier during the pandemic when Covid-19 rates were higher. Requestor suspected that the pandemic was being used as a pretext to disallow in-person attendance. The Board President responded by saying that he was advised to hold the meeting remotely because of the “disruptive” nature of the previous Board meeting. Requestor was also concerned because the audio was difficult to hear and that conducting Board meetings over Zoom was unfair to those who can’t afford internet service.

Section 7(e)(1) of OMA states that if, “the Governor or the Director of the Illinois Department of Public Health has issued a disaster declaration related to public health concerns because of a disaster as defined in Section 4 of the Illinois Emergency Management Agency Act, and all or part of the jurisdiction of the public body is covered by the disaster area,” then the physical presence of a quorum is not necessary for an open or closed meeting. The PAC held that the Board’s meeting complied with this section of OMA because the Governor’s disaster proclamation for Covid-19 was still in effect.

Section 7(e)(2) of OMA requires that “the head of the public body as defined in subsection (e) of Section 2 of [FOIA] determines that an in-person meeting or a meeting conducted under [OMA] is not practical or prudent because of a disaster[.]” The PAC also held that the Board complied with section 7(e)(2), reasoning that the Board’s remote meeting was prudent because several members of the public had refused to cooperate with the Board’s masking requirement during their August meeting.
The PAC also found the Board was also in compliance with section 7(e)(4) of OMA, which states that when “attendance at the regular meeting location is not feasible due to the disaster, including the issued disaster declaration…the public body must make alternative arrangements to allow any interested member of the public access to contemporaneously hear all discussion[.]” The Board provided access by providing the public a Zoom link to its meeting.

For these reasons, the PAC held that the Board complied with OMA when it held their meeting remotely.

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