Recent Court Decisions

The Illinois Appellate Court for the 5th District (Court) considered an appeal from the Circuit Court of St. Clair County (Circuit Court), and held that a sexual abuse complaint brought against Freeburg CCSD No. 70 (Freeburg) in 2014 was not subject to coverage under a claims-made insurance policy effective beginning in 2013 because the complaint involved the same, continuing course of misconduct by the same school official as complaints dating back to 2010.
 
This case involved a coverage dispute pertaining to a claims-made insurance policy (policy) issued by RSUI Indemnity Company (RSUI) to Freeburg from July 1, 2013 through July 1, 2014. RSUI denied Freeburg’s demand for coverage under the policy for an underlying federal lawsuit (Doe 4 action) filed against Freeburg and certain former Freeburg officials. The Doe 4 action was brought by a former Freeburg student who alleged he had been sexually abused and harassed on multiple occasions by a male Freeburg official, Robin Hawkins, from 2007-2009. Hawkins had been employed by Freeburg from 1977 to 2009, up to the point when he committed suicide. Prior to Doe 4, there were three other Doe actions filed against Freeburg alleging Hawkins committed sexual abuse in 1991, from 1994-1996, and from 2005-2008.
 
When the Doe 4 action was filed in 2014, Freeburg demanded RSUI cover it under the policy. RSUI denied coverage, alleging that because Freeburg had been aware of multiple reports and allegations of sexual abuse dating back to 1980, the Doe 4 complaint was part of a “single claim” (starting with Doe 1) made against Freeburg prior to the inception of the policy and therefore it was exempt from coverage. RSUI’s “single claim” provision stated:
 
“All Claims based on, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the same or related facts, circumstances, situations, transaction or events, or the same or related series of facts, circumstances, situations, transactions or events shall be deemed to be a single Claim for all purposes under this policy and shall be deemed first made when the earliest of such Claims is first made, regardless of whether such date is before or during the Policy Period.”
 
In September 2014, Freeburg brought this lawsuit seeking a declaration that RSUI had a duty under the policy to defend and indemnify Freeburg in the Doe 4 action. Freeburg asserted that the Doe 4 action didn’t arise out of the same or related facts or circumstances as the previously filed Doe actions because each Doe action involved different minor male students at different time periods, and so it was not part of “single claim” and should be covered by RSUI. Following many motions and cross motions for dismissal and summary judgment, the Circuit Court determined that RSUI’s related-claim provision was ambiguous and that RSUI had a duty to defend and indemnify Freeburg in the Doe 4 action in the amount of $1,159,144.37.
 
RSUI appealed, alleging that the Circuit Court erred in finding the policy’s related-claim provision was ambiguous and that the Doe 4 action was a claim first made against Freeburg during the coverage period.
RSUI conceded that its policy language was broad but it asserted that the Doe 4 action was logically connected to the previous Doe actions, rendering all Doe actions a single claim first made against Freeburg before the RSUI policy was effective. The Court agreed with RSUI that its policy provision was not ambiguous, and also found that a plain, ordinary reading of the provision would lead a reasonable person to conclude that the Doe 4 action falls under it. The Court stated that “Claims that involve the same, continuing course of misconduct by the same school officials that culminates in the same type of harm from a common, identified sexual predator, while that predator was an employee of the Freeburg school district is a ‘related series of facts, circumstances, situations, transactions or events’ under any ordinary meaning of the phrase. This is especially true in the context of a claims-made policy, where the triggering event is the filing and service of a complaint, rather than the occurrence date of the alleged misconduct.”
 
Based on this, the Court reversed the Circuit Court’s judgment, vacated its orders, and remanded the order back to the Circuit Court with directions to dismiss two of Freeburg’s claims against RSUI.
 

The Illinois Appellate Court for the 4th District (Court) considered an appeal from the Circuit Court of Sangamon County (Circuit Court), and held that the Bloomington City Council (City Council) improperly invoked the closed session exception for probable or imminent litigation under Section 2(c)(11) of the Open Meetings Act (OMA).
 
In 1986 the cities of Bloomington and Normal entered into an intergovernmental agreement for sharing revenue and expenses, and the agreement was effective until cancelled or revised by mutual agreement. In April 2014, a dispute arose between Bloomington and Normal about the agreement and Bloomington advised Normal that it intended to vote to terminate it. Normal responded that it was willing to discuss a termination plan. On February 20, 2017, the City Council entered closed session to discuss the agreement using OMA’s exception for probable or imminent litigation in Section 2(c)(11). Though the City Council’s attorney reminded the body that its discussion should be confined to options more or less likely to get the City in or out of litigation, the closed session discussion focused on the public relations aspect of terminating the agreement, possible approaches to terminating the agreement, and the economics involved. Neither city had filed suit at this time, and the City Council’s attorney thought litigation “could be plausible.” A week later, the McClean County State’s Attorney wrote to the Illinois Attorney General’s Public Access Counselor (PAC) asking it to review the closed session. On June 6, 2017, the PAC issued a binding opinion finding that the City Council violated OMA by improperly entering closed session without reasonable grounds to believe a lawsuit was more likely than not to be instituted or was close at hand.
 
The City Council appealed the PAC’s decision to the Circuit Court, which reversed the PAC’s binding opinion. The Illinois Attorney General then filed this appeal. Reviewing this matter, the Court found that because there was no litigation pending at the time of the meeting and City Council members didn’t reasonably believe litigation was probable or imminent, the City Council improperly invoked the Section 2(c)(11) closed session exception. The Court also held that even if the City Council had lawfully entered closed session, it violated OMA during closed session because their discussion did not focus on litigation. The Court reversed the Circuit Court’s judgment reversing the PAC’s binding opinion.
 

The Illinois Appellate Court for the 1st District (Court) considered an appeal from the Circuit Court of Cook County (Circuit Court), and held that a public body’s decision to withhold documents in response to a FOIA request is evaluated at the time the body responds to the request.
 
On November 18, 2015, Charles Green (Plaintiff) sent a FOIA request to the Chicago Police Department (CPD) seeking “any and all closed complaint register [CR] files that related to Chicago Police Officers.” When CPD didn’t respond, Plaintiff sued in the Circuit Court, alleging that CPD violated FOIA by failing to produce the requested documents or otherwise respond to his FOIA request. CPD admitted it hadn’t responded to Plaintiff’s FOIA but argued that: 1) several documents or portions of documents were exempt from production because they contained private or personal information, and 2) CPD was barred from producing CR files over four years old due to an injunction issued in an unrelated case, which was in place at the time of Plaintiff’s FOIA request. CPD argued that Plaintiff was only entitled to the CR files that were not subject to the injunction – CR files dated after 2011. The Circuit Court ordered CPD to confer with Plaintiff to determine a schedule for production of the CR files dated from 2011-2015, since those weren’t subject to the injunction, and to produce the files by December 31, 2018. Meanwhile, the Circuit Court held that once the injunction was lifted, CPD could produce the 1967-2011 files to Plaintiff without Plaintiff needing to file another FOIA request. The Circuit Court ordered CPD to produce the 1967-2011 files by December 31, 2020, and CPD appealed.
 
The only issue on appeal was whether the Circuit Court had jurisdiction to order the production of the 1967-2011 records after it had determined that CPD didn’t improperly withhold them at the time they were requested (due to the injunction). Section 11 of FOIA allows any person who is denied access to public records to sue for relief, and subsection (d) gives the court “jurisdiction to enjoin the public body from withholding public records and to order the production of any public records improperly withheld from the person seeking access.” The Court reasoned that Section 11(d) means a court may only order the production of records that were “improperly withheld.” The Court determined it should evaluate CPD’s response to Plaintiff’s FOIA at the time the response was made – November 2015. At this time, the injunction was in place and CPD could not release the 1967-2011 files, so CPD’s decision was proper. The Court held that it was immaterial that the injunction was later vacated because “we evaluate the public body’s decision to withhold documents at the time the body responded to the request.” The Court reversed the Circuit Court’s order, finding CPD did not need to produce the 1967-2011 files.

The Illinois Appellate Court for the 1st District (Court) considered an appeal from the Circuit Court of Cook County (Circuit Court) and found that reviewing 28,000 pages of documents potentially responsive to a FOIA request is not unduly burdensome.
 
On October 12, 2018, Plaintiff Tyrone Greer (Plaintiff) sent a FOIA request to the Board of Education of the City of Chicago (Board) for: 1) all documents from 1999-2005 from the Equal Employment Opportunity Commission (EEOC) dealing with any complaint by Plaintiff for racial discrimination, 2) any information for the same years “sent to and received from the EEOC, any judge, internal administrative department, and individuals with administrative powers” concerning Plaintiff dealing with any charge of racial discrimination, and 3) “any decision, censorship, conclusion, and warning that came from the EEOC, any administrative judge, and a legitimate court system” concerning any complaints dealing with Plaintiff and the Board. On October 30, 2018, the FOIA Officer for the Chicago Public Schools (CPS) responded by identifying four case numbers of “potentially responsive cases” and stated CPS had eight boxes for the cases, holding up to 28,000 pages. The FOIA Officer claimed CPS would need to review each page to identify any responsive records and to redact any information exempt under FOIA, so she asked Plaintiff to narrow his FOIA request. Plaintiff did not narrow his request. On November 16, 2018, the Board denied Plaintiff’s request as unduly burdensome under Section 3(g) of FOIA, which provides that “requests calling for all records falling within a category shall be complied with unless compliance with the request would be unduly burdensome for the complying public body and there is no way to narrow the request and the burden on the public body outweighs the public interest in the information.”
 
Plaintiff then filed a complaint against the Board in Circuit Court. The Board filed a motion for summary judgment and, in support, the FOIA Officer filed a statement asserting that CPS would need to review and redact up to 28,000 sheets of paper which could take up to 86 business days. The Circuit Court granted the Board’s motion for summary judgment on the grounds that Plaintiff’s request was unduly burdensome, and Plaintiff appealed.
 
Looking to Section 1.2 of FOIA, the appellate Court noted that “any public body asserting that an exemption covers a requested disclosure ‘has the burden of proving by clear and convincing evidence that it is exempt.’” It further noted that when a government agency claims a FOIA request is “unduly burdensome,” the agency implies it will “face a great burden identifying responsive documents” but that this case “involves no such difficulty.” Instead, the Court stated that “a glance at the head of each document should quickly determine whether the exemption applied.” The Court also reasoned that the public has a substantial interest in allegations of racial discrimination by public bodies and the Board’s response to such allegations, even if they only pertain to a single employee, and so the alleged undue burden did not outweigh public interest in the information. The Court sent the matter back to the Circuit Court and ordered the Board to examine the eight boxes to identify documents for which it will raise exemption or privilege.

The Illinois Appellate Court for the 1st District (Court) considered an appeal from the Circuit Court of Cook County (Circuit Court) and found that the Office of the Illinois Attorney General (OAG) properly withheld records in response to a FOIA request under the deliberative process exemption in Section 7(1)(f).
 
During the fall of 2012, OAG filed an action against several Cathode Ray Tube manufacturers alleging they had conspired to fix prices on certain products, resulting in overcharges to Illinois consumers. OAG entered settlement agreements with all of the manufacturers between July 2016 and March 2018. Each settlement agreement stated it would not become final until the circuit court entered a final judgment providing that settlement funds be distributed to eligible claimants. The final judgment has not yet been entered. Plaintiff Fisher represents several clients that submitted claims as part of the settlement, but the majority of his clients were informed that they were not eligible for settlement claims.
 
Plaintiff then submitted a FOIA request to OAG seeking certain records related to the settlement, including communications concerning eligibility between OAG and consultants OAG hired to help administer the claims process. OAG denied Plaintiff’s request for records, citing Section 7(1)(f) which exempts from disclosure “preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.” OAG asserted the communications that Plaintiff sought were “written for the purpose of planning courses of action with regard to assessing claims” and therefore they were predecisional and exempt under Section 7(1)(f). Plaintiff responded by filing suit in the Circuit Court, alleging the requested records did not fall under Section 7(1)(f). The Circuit Court concluded the records that Plaintiff sought were exempt under Section 7(1)(f) and that OAG had properly withheld them. Plaintiff appealed.
 
On appeal, the Court noted that FOIA requires full disclosure unless the desired information is exempted under clearly delineated statutory language, and that when a government claims an exemption it must prove the exemption applies by clear and convincing evidence. Looking to Section 7(1)(f), the Court stated that this exemption expresses public policy favoring the confidentiality of predecisional materials in order to protect the communication process and encourage frank and open discussion among agency employees before a final decision is made. Thus, to use Section 7(1)(f), the responsive materials must be both 1) inter or intra agency, and 2) predecisional and deliberative. The Court found that the materials OAG withheld met both of these requirements, and so OAG met its burden of proof.