Recent Court Decisions

The Personnel Committee (Committee) of the Board of Directors (Board) of the South Central Illinois Mass Transit District (District) violated OMA when it did not produce a verbatim recording of the closed session portion of its meeting on March 18, 2021.
 
In her Request for Review, Requestor, an employee of the District, said that she recorded and took minutes for Board meetings for ten years. However, she was recently informed that “the Board and legal counsel ‘would be taking care of all closed session minutes and recordings.” Requestor stated that when the Committee went into closed session, the board president asked everyone except for Personnel Committee members, Finance Committee members, and legal counsel to leave the room. After the closed session, Requestor noticed that the recorder “was untouched.” The board president confirmed with both Requestor and the PAC that the closed session had not been recorded. Requestor suspected that the Board avoided recording during the closed session because they discussed topics that should have been discussed in open session. She believes that this was done to avoid transparency.
 
Section 2.06(a) of OMA states that, “public bodies shall keep written minutes of all their meetings, whether open or closed, and a verbatim record of all their closed meetings in the form of an audio or video recording.” Committees and other subsidiary bodies, such as the one employing Requestor, are included in the definition of public bodies found in Section 1.02 of OMA. The statutory language in OMA clearly demonstrates that the District violated the law in this instance. Due to the violation, the District was directed by the PAC to adopt procedures that would ensure the recording of future closed sessions. The PAC did not comment on whether or not the Board discussed topics during closed session to avoid transparency.  
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The Village of Morton Grove Police Department (Police Department) violated FOIA when it improperly denied a request for employee attendance records.
 
On January 19, 2021, Requestor, on behalf of an organization called “Northwest Side Coalition Against Racism & Hate”, submitted a FOIA request for employee attendance records from the Police Department. Specifically, the request sought records showing the names, star numbers, respective dates, and the type of time off taken by Police Department officers and employees between January 1, 2021 to January 8, 2021 as well as from January 1, 2020 to January 8, 2020.
 
The Police Department provided Requestor with copies of responsive schedules on February 5, 2021. However, all of the identifying data was redacted by the Police Department, which cited Section 7(1)(v) of FOIA to justify the redaction. Requestor sent a request for review to the PAC a few weeks later contesting the redactions. When the Village of Morton Grove (Village) provided the PAC with the requested materials weeks later, they cited Section 7(1)(d)(iv) of FOIA as a justification for the redactions as well.
 
Section 7(1)(v) of FOIA exempts public bodies from releasing, “[v]ulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems” that could pose “a clear and present danger to the health or safety of the community[.]” Similarly, Section 7(1)(d)(iv) of FOIA exempts the release of information that would, “endanger the life or physical safety of law enforcement personnel or any other person[.]”
 
The PAC noted in its opinion that the Village failed to demonstrate that a basic employee attendance record constitutes a protected piece of information under Section 7(1)(v). The PAC also stated that the Village did not provide any factual information to support its claim that the unredacted attendance records would endanger anyone’s life or safety under Section 7(1)(d)(iv). For these reasons, the PAC directed the Police Department to release the attendance records without redactions to Requestor. 
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The U.S. Supreme Court (Court) considered an appeal from the Third Circuit Court of Appeals (Third Circuit) by Mahanoy Area School District (District). The Court held that while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the District in this case were not enough to overcome the student’s interest in free expression. As a result, the District violated the student’s First Amendment rights when it suspended her from the junior varsity cheerleading squad for criticizing the cheerleading program in a profanity-laced, off-campus Snapchat post.
 
This case involved B.L., a student in the District’s high school who tried out for the varsity cheerleading squad at the end of her freshman year. She didn’t make the varsity squad but was offered a spot on the junior varsity squad. B.L. didn’t accept this decision gracefully and that weekend, while at a local convenience store with a friend, posted two photos on Snapchat, a social media platform where a user’s posts are only visible to approved friends for a short period of time and then disappear. The first photo showed B.L. and her friend with middle fingers raised and the caption “F--- school f--- softball f--- cheer f--- everything.” The second image was blank but for a caption reading “Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else?” B.L.’s Snapchat friends included other high school students, some also on the cheerleading squad. At least one of these students took pictures of B.L.’s posts and shared them with her mother, a cheerleading squad coach. The images spread, and later that week several cheerleaders approached the coaches, visibly upset by the posts. After discussing the matter with the school principal, the coaches decided to suspend B.L. from the cheerleading squad for her sophomore year because the posts used profanity in connection with a school extracurricular activity and therefore violated team and school rules.
 
B.L. apologized but the District affirmed her suspension, so B.L. filed suit in Federal District Court (District Court). The District Court found that B.L.’s posts did not cause a substantial disruption at school and that the District’s suspension violated B.L.’s First Amendment rights. The District appealed to the Third Circuit, which upheld the District Court’s conclusion. The District then appealed to the Supreme Court. 
 
The Court began by considering its history of student speech caselaw. It was very careful not to disturb the 1969 holding in Tinker v. Des Moines Indep. Comm. Sch. Dist., where the Court found that schools have a special interest in regulating on-campus student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The Court noted that schools’ special interests in regulating student speech do not always disappear when that speech takes place off campus, but it also set forth what circumstances may implicate a school’s regulatory interests. These circumstances include: serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices. Despite this list, the Court explicitly stated it was not setting forth “a broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech and whether or how ordinary First Amendment standards must give way off campus” to schools’ needs to prevent substantial disruption. Instead, the Court noted three features of off-campus speech that often distinguish schools’ efforts to regulate it:
 

1. A school will rarely stand in loco parentis when a student speaks off campus.

 

2. From the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.

 

3. The school itself has an interest in protecting a student’s unpopular expression, especially when it occurs off-campus, because America’s public schools are the nurseries of democracy and democracy only works if we protect the “marketplace of ideas.”

 
The Court stated that these three features, taken together, “mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.”
 
Next, the Court considered B.L.’s posts. First it found that though her posts were “crude” and “used vulgarity,” they were entitled to First Amendment protection because they reflected criticism of the rules of B.L.’s community. Second, applying the above-noted features of off-campus speech to B.L.’s posts, the Court found that the circumstances of her posts diminished the school’s interests in regulation. Third, the Court reviewed the school’s interest in teaching good manners and in punishing vulgar language aimed at the school community, but found this interest “weakened considerably” because B.L. spoke outside of school on her own time and because the school presented no evidence of any general effort to prevent students from using vulgarity outside the classroom. Finally, the Court found that B.L.’s posts did not cause substantial disruption at school or within the cheerleading squad. Based on this, the Court affirmed the Third Circuit’s judgment that the District violated B.L.’s First Amendment rights when it suspended her from the cheerleading squad for one year.
 
While this decision leaves Tinker and its progeny intact, districts should remember the three distinguishing features of off-campus speech (listed above) when considering whether to regulate off-campus student speech.

The City of Geneva (City) violated FOIA by denying a request for copies of its correspondence with a third party by alleging such correspondence was exempt from disclosure under Section 7(1)(f) as part of the City’s deliberative process.
 
Requestor submitted a FOIA request to the City seeking copies of “all communications between the City of Geneva and applicant Malone Funeral Home that have taken place after the date of public notice of a hearing for a zoning change at Malones Funeral Home.” The City denied this request under Section 7(1)(f) of FOIA, and Requestor asked the PAC to review the matter.
 
On review, the PAC asked the City to explain the factual and legal bases for applying Section 7(1)(f) of FOIA to the withheld records. Section 7(1)(f) exempts from disclosure “preliminary 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 City explained that the requested records consisted of comments from the City and its consultants about applications submitted by Malone Funeral Home seeking zoning variations, and it asserted these comments were exempt under Section 7(1)(f) because they were deliberative as they: 1) were intended to allow City officials to freely express ideas to the applicant regarding application deficiencies, City requirements, and/or recommendations; and 2) allowed the applicant an opportunity to revise its application. The PAC noted several court cases emphasizing that Section 7(1)(f) is limited to internal documents and records exchanged with third parties that represent the public body or otherwise do not have any independent interests in the subject of the communications. The correspondence at issue here, however, was not internal nor was it solely among consultants representing the City’s interests. To the contrary – the correspondence was with a third party that had interests independent from the City and stood to benefit from the City’s final zoning application decision. As a result, the correspondence did not fall under the Section 7(1)(f) exemption. The PAC determined the City improperly used Section 7(1)(f) to withhold the requested records and directed the City to immediately provide Requestor with the correspondence.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

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.