Public Body in Violation of FOIA for Withholding Settlement Record
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 City of Chicago (City) Department of Finance (Department) improperly withheld a record responsive to a FOIA request for settlement-related records.
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).
Here, the PAC reviewed the settlement record at issue and was unable to find an indication that legal advice was sought or provided or that the City attorney who signed the record was acting as the Alderman's attorney in connection with the settlement. The City had been dismissed from the case and the Alderman was represented by private counsel. Although part of the record briefly explains the City's involvement in the settlement, neither that statement nor any other portion of the record renders legal advice to the Alderman or indicates that the Alderman sought legal advice pertaining to the litigation and settlement from the City attorney. Rather, the withheld record is a document concerning the settlement which is signed by the Alderman and an attorney with the City's Law Department. The City attorney was representing the City while the Alderman had his own attorney, and the parties had separate interests in the subject that the withheld record addresses.
In addition, the PAC cited to the Illinois Constitution at Article VIII, section 1(c), which provides that "[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." The constitutional right to information regarding the use of public funds is incorporated into the provisions of FOIA. 5 ILCS 140/2.5. ("All 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 PAC concluded that the public has a constitutional right to know the purposes for which public funds are expended. Because the withheld settlement record relates to such a purpose and because it is not a communication protected by the attorney-client privilege, the Department did not sustain its burden of proving that the record is exempt from disclosure under section 7(1)(m) of FOIA.
A copy of the decision can be found here.