Recent Court Decisions

This binding opinion from the Illinois Attorney General’s Public Access Counselor (PAC) discusses an issue under the Freedom of Information Act (FOIA) of whether the Hinsdale Township High School District 86 (District) improperly withheld a record responsive to a FOIA request seeking an attachment from the District’s former law firm to an e-mail sent from the president of the District's Board of Education (Board) to the rest of the Board's members. The FOIA request included a copy of the email chain underlying the FOIA request. The e-mail chain showed an e-mail with the attachment at issue from the District's former legal counsel and copying other Board members, the District Superintendent, and two attorneys for the District's new law firm. The attachment at issue in this matter relates to a billing dispute with the former law firm.

It is the public policy of the State of Illinois that "all persons are entitled to full and complete information regarding the affairs of government." 5 ILCS 140/1. Under FOIA, "(a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS 140/1.2. 

Section 7(1)(m) of FOIA exempts from disclosure: “Communications between a public body and an attorney or auditor 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 body, and materials prepared or compiled with respect to internal audits of public bodies. A party asserting that a communication to an attorney is protected by the attorney-client privilege must show that: (1) a statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential." Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2006). A public body that withholds records under section 7(1)(m) "can meet its burden only by providing some objective indicia that the exemption is applicable under the circumstances." Illinois Education Ass'n v. Illinois State Board of Education, 204 Ill. 2d 456, 470 (2003). 

Section 7(1)(a) of FOIA exempts from disclosure "[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law." Under this provision, "an exemption restricting the expansive nature of the FOIA's disclosure provisions must be explicitly stated--that is, such a proposed disclosure must be specifically prohibited." (Emphasis in original.) Better Government Ass'n v. Blagojevich, 386 Ill. App. 3d 808, 816 (2008).  

Section 7(1)(f) of FOIA exempts from inspection and copying "[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."

Here, the PAC reviewed the record at issue and determined that it was not exempt from disclosure pursuant to Section 7(1)(m) because the contested record did not contain any information regarding the nature of services performed, the District's motive for seeking legal representation, or litigation strategy. Portions of three Illinois Supreme Court Rules of Professional Conduct were presented by the District as prohibiting the District from disclosing the record at issue, specifically under Rule 1.6. The District also cited sections l.4 and 1.9 arguing that those provisions require "attorneys to keep their clients informed while ensuring the protection of privileged communications." The PAC found that Rule 1.6 contained no exception for public bodies responding to FOIA requests as well as finding that Rules 1.4, 1.6 and 1.9 do not place a limitation on the disclosure of information by a lawyer's client, including a public body that has received a FOIA request. The PAC found that the record did not reflect a deliberation with a third party acting on the District's behalf, instead the former law firm was acting with independent interests, and therefore the record did not fall within the scope of Section 7(1)(t) as an inter- or intra-agency deliberative record. The PAC determined that the District improperly withheld the contested record and directed the District to provide the record to the requester.

A copy of the decision can be found here.
 

A member of the public submitted a request for review to the Illinois Attorney General's Public Access Counselor's office (PAC) alleging that the Village of Sauk Village Board of Trustees (Board) violated the Open Meetings Act (OMA) by failing to provide an adequate public recital before voting on an appointment to fill a vacancy on the Board.  

The PAC limited its opinion in accordance with OMA to reviewing whether the Board violated OMA and, if so, whether there is any necessary action for the Board to take to comply with the directive of this opinion. 5 ILCS 120/3.5(e). Section 1 of OMA states that "it is the intent of this Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly” and "that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business." 5 ILCS 120/1. Section 2(e) of OMA provides that, "[n]o final action may be taken at a closed meeting. Final action shall be preceded by a public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted."

The requirements of section 2(e) of OMA apply to all final actions taken by a public body. The Act does not define "final action." The PAC found through its analysis that decisions which bring matters to a resolution, regardless of the outcome of the vote, constitute final actions that must be made transparently because the public has a right to know how public officials conducted themselves. 

The Illinois Supreme Court has held that "under section 2(e) of the Open Meetings Act, a public recital must take place at the open meeting before the matter is voted upon; the recital must announce the nature of the matter under consideration, with sufficient detail to identify the particular transaction or issue, but need not provide an explanation of its terms or its significance." Bd. of Educ. of Springfield Sch. Dist. No. 186 v. Att'y Gen. of Illinois, 77 N.E.3d 625, 636 (2017). In that case, the Court concluded that the school board's public recital was sufficient because the Board president recited the general nature of the matter under consideration (a separation agreement and release) as well as specific detail sufficient to identify the particular transaction (the separation agreement was between the Board and the named Superintendent). See id. at 638.

In this case, the PAC determined that the Board’s vote on the proposed appointee resolved whether or not that individual would fill the vacancy on the Board. While the Board did not choose the new appointee at that meeting, it did decide not to fill the vacancy with the proposed appointee. Because that vote constituted a final action subject to the requirements of section 2(e) of OMA, the PAC determined that it must analyze whether the Board provided an adequate public recital before voting.

The PAC found the public recital that preceded the Board's vote indicated only that the Board would consider whether to appoint an unnamed individual to fill a vacancy on the Board. Although the reference to the appointment of a trustee announced the general nature of the matter under consideration, the public recital lacked information that was essential to inform the public of the particular business being conducted. Because the recital did not name or identify in any manner the individual whose appointment the Board considered, the public could not know whom the mayor proposed to fill the vacancy and whose appointment the Board rejected. The failure by the Board to identify that individual prohibited the public from assessing the mayor's proposed appointee and the Board's decision to reject them. 

The PAC concluded that the public recital that preceded the Board's vote indicated only the general nature of the matter under consideration and that the failure to identify the proposed appointee made the public recital inadequate because it deprived the public of a detail that was essential to inform the public of the business being conducted.

The PAC directed the Board to take immediate and appropriate action to remedy its violation of section 2(e) of OMA by amending the approved minutes of the meeting to include the name of the
proposed appointee.

A copy of the decision can be found here.

 

The Brownsburg Community School Corporation (District) in Indiana terminated a teacher for his refusal to follow the name policy on use of transgender students’ preferred pronouns. Brownsburg High School (Brownsburg) instituted a policy in 2017 mandating teachers to call students by their first names as they appeared in its database. For transgender students who had changed their first names, the database listed their new ones. John Kluge was a teacher at Brownsburg. He repeatedly objected to the school’s name policy on religious grounds. Kluge believed that calling transgender students names that conflicted with their biological sex encouraged their transgender identities which he considers a sin. He requested a religious accommodation, which was granted. Kluge was allowed to call students by only their last names. This lasted for about one school year, then the accommodation was rescinded. Kluge was told to either call the students by their first names as they appear in the school’s database or face termination. He attempted to work with the school and negotiate, but ultimately his resignation was accepted by the school board. He sued the District under Title VII for failing to accommodate his religion and retaliation.

An employer is required to accommodate an employee’s religious practices unless doing so would impose an “undue hardship” on its business. 42 U.S.C. § 2000e(j). At issue in this case is whether the impacts caused by Brownsburg’s accommodation of Kluge rise to the level of an undue hardship for the school under the new standard set in Groff v. DeJoy, 600 U.S. 447 (2023). The Seventh Circuit Court found that because material factual disputes exist, the district court’s grant of summary judgment to Brownsburg on Kluge’s accommodation claim was reversed and the case is being remanded for further proceedings.

Key takeaways from the case include that the Seventh Circuit found that facts were needed to determine the undue hardship question and summary judgment was not appropriate. The Seventh Circuit found that the district court should not have defined Brownsburg’s mission. Brownsburg is required on remand of the case to offer proof of its mission pre-dating Kluge’s request for accommodation. The Seventh Circuit, applying the higher standard of Groff to Brownsburg’s argument of undue hardship caused by accommodating Kluge’s religious beliefs, said Brownsburg had not produced undisputed facts demonstrating an “excessive” or “unjustifiable” hardship on its mission of “fostering a safe, inclusive learning environment for all.”

The Seventh Circuit found that whether the accommodation caused harm is unclear at this point and spent time explaining that evidence is needed to show whether the act of using last names in isolation caused objective, not subjective harm.  There was conflicting evidence on the sincerity of Kluge’s asserted religious beliefs due to the fact that Kluge used the first and last names of all students as they appear in the database during an awards ceremony for the orchestra. This was the only occasion on which he referred to transgender students by their chosen first names. Kluge explained he felt it would be “unreasonable and conspicuous” to refer to students by their last names at such a “formal event,” as opposed to the classroom setting. He acknowledged that using the transgender students’ chosen first names was “sinful” to him, yet he thought he was “making a good-faith effort to work within the bounds of” his last-name-only accommodation. Brownsburg argued that Kluge’s ability to use the names as they appeared in the database is evidence of his lack of sincerely held religious beliefs. The Seventh Circuit affirmed the district court’s denial of Kluge’s summary judgment motion on this question of sincerely held religious belief and held that a genuine issue of material fact exists regarding Kluge’s sincerity. 

As a second basis for undue hardship, Brownsburg presented that the last-name-only accommodation exposed it to an unreasonable risk of Title IX liability. It cited Seventh Circuit precedent for the proposition that schools are subject to liability any time they “treat[] transgender students differently than other students.” By contrast, Kluge asserted that by adhering to the last name-only practice, he “treated everyone the same,” so any liability was at most speculative. The Seventh Circuit found that Kluge, by adhering to the last-name-only practice, was not definitely treating transgender students worse than their classmates, or subjecting them to “increased stigmatization” and there remained questions of fact. Brownsburg did not show undisputed evidence that the accommodation placed the school on the “razor’s edge of legal liability,” under Title IX.  

Overall, the district court’s decision to not revisit Kluge’s retaliation claim was affirmed based on a waiver by Kluge of the argument. The Seventh Circuit affirmed the district court’s denial of summary judgment to Kluge based on factual disputes as to the sincerity of his religious beliefs. Because other factual disputes were found to exist on the undue hardship issue, the Seventh Circuit reversed the district court’s grant of summary judgment to Brownsburg as to the undue hardship caused by the accommodation and remanded the case for further proceedings on that topic consistent with the opinion. The Seventh Circuit granted the district court the discretion to decide whether to reopen discovery on remand.

A copy of the decision can be found here.
 

A school district in Milwaukee, Wisconsin, terminated a school counselor following her profanity-laden speech against transgenderism given at a rally at the State Capitol.  Following her termination by the school district, she filed a civils rights lawsuit claiming she was unlawfully fired in retaliation for exercising her First Amendment right to freedom of speech. The district court denied her request for a preliminary injunction and dismissed her First Amendment claim, finding in favor of the school district, specifically that the school district's interests as a public employer outweighed her speech rights under these circumstances. The 7th Circuit upheld the district court’s decision holding that her speech fell outside the scope of the First Amendment's protection as applied in the context of public employment.

The Court analyzed the facts of the case considering when a public employee “speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences… [using a] list of seven factors that may be relevant to Pickering balancing:

(1) whether the speech would create problems in maintaining discipline or harmony among co-workers; (2) whether …the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee's ability to perform her responsibilities; (4) the time, place, and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decision making; and (7) whether the speaker should be regarded as a member of the general public.” 

The 7th Circuit (Court) took note of the fact that she introduced herself to the crowd as a school counselor for the Milwaukee public school district. The Court explained that the role of teacher and school counselor are positions of great public trust and authority. “These positions by their nature require “a degree of public trust not found in many other positions of public employment.” The Court found that the school counselor’s “speech was fundamentally at odds with this foundational duty. It was not a calm, reasoned presentation of her views on this sensitive subject. She made a harsh, angry, and profanity-filled public pledge to carry out her counseling duties in a relentlessly rigid way when it comes to transgender issues. That pledge was hardly compatible with her obligation to build student and parental trust when counseling children with gender dysphoria or who otherwise struggle with gender-identity concerns. Nor is it compatible with her responsibility as a school counselor to promote respect for and humane treatment of these children by other students. Darlingh vowed that “not a single one” of her students would “ever, ever transition” on her watch, punctuating her promise with multiple expletives. In this way she signaled to students and parents an inability to deal with this sensitive subject with equanimity, civility, and respect for different views. Her speech is hard to reconcile with her professional obligation to approach her counseling duties with empathy and good judgment.” The termination letter she received explained that her speech impaired her ability to perform her role as a school counselor, damaged the district's reputation, and undermined its mission to provide an equitable and supportive learning environment for all students. 

The court determined that the Pickering balance tipped in favor of the school district mainly because of “…the speech itself, the sensitive nature of Darlingh's job, and the school district's reasonable assessment that her profanity-ridden remarks expressed a fixed commitment to carry out her duties in a way that conflicted with its mission and policies, to the detriment of the district, students, and parents.” 

A copy of the decision can be found here.
 

A member of the public submitted a request for review to the Illinois Attorney General's Public Access Counselor's office (PAC) alleging that a City of Peru (City) pool committee (Committee) violated the Open Meetings Act (OMA) by holding meetings closed to the public regarding building a new pool in the City. The PAC analyzed the issue presented using a four-factor test established by the Illinois Supreme Court to determine whether the Committee would constitute a “subsidiary body” subject to OMA requirements.

Section 1 of OMA states that "it is the intent of this Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." Section 1.02 of the OMA defines "public body" as including "all legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but limited to committees and subcommittees[.]" Generally, the OMA applies to a majority of a quorum of school board members when discussing public business contemporaneously, commonly three or more school board members. In analyzing whether an entity constitutes an advisory body of a public body, Illinois courts have examined: (1) who appoints the members of the entity, (2) the formality of their appointment, (3) whether the members are paid for their tenure, (4) the entity's assigned duties, including duties reflected in its bylaws or authorizing statute, (5) whether the entity's role is solely advisory or whether it also has a deliberative or investigative function, (6) whether the entity is subject to government control or otherwise accountable to any public body, (7) whether the entity has a budget, (8) the entity's place within the larger public body, and (9) the impact of decisions or recommendations that the entity makes. University Professionals of Illinois v. Stukel, 344 Ill. App. 3d 856, 865 (2003). Courts have considered four primary factors in determining whether an entity is a "subsidiary body" of a public body: (1) the extent to which the entity has a legal existence independent of government resolution, (2) the degree of government control exerted over the entity, (3) the extent to which the entity is publicly funded, and (4) the nature of the functions performed by the entity." Better Government Ass'n v. Illinois High School Ass'n, 2017 IL 121124, ¶ 26.

First, the PAC found that the City created the Committee as part of the City’s planning process to construct a new pool in the City. The City claimed the Committee was an informal advisory committee doing preliminary background work for the City to consider. The PAC stated that even if the City labels the Committee or its gatherings as “informal” that does not shield the gatherings or discussions about public business from OMA requirements. The PAC determined that the Committee would not legally exist independently of the City.

Second, the PAC found that the Mayor appointed the members of the Committee, the Committee’s recommendations were all subject to City Council review and approval, and the City had been directly involved in and controlled most of the Committee activities relating to building a pool in the City, including providing assistance related to finance, engineering and zoning, and parks and recreations matters. The PAC determined that the City exerts a significant amount of government control over the Committee.

Third, the PAC found that even though the City claimed that the members of the committee are volunteering, the Committee received at least some indirect public funding by virtue of being part of the City, and salaried City officials and employees devoted their time to supporting the Committee’s activities. For example, the Mayor appointed to the Committee two members of the City Council as well as the City's Director of Parks, Recreation and Special Events.

Finally, the PAC found that the Committee was tasked with assessing the potential designs, costs, and locations for a new City pool, and reporting its findings to the City, which are roles typically performed by a municipal committee. The PAC determined that the City utilized the Committee to perform governmental functions.

The PAC concluded that the Committee is a subsidiary body of the City subject to the requirements of OMA.

A copy of the decision can be found here.