Recent Court Decisions

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.
 

The Illinois Appellate Court for the 1st District (Court) considered an appeal from the Circuit Court of Cook County (Circuit Court) and found that a school district properly determined that a student was not a legal resident of the district.
 
During the 2017-2018 school year, M.G. was enrolled as a 7th grade student in the District and her address was listed at a large two-story building located a few blocks from the school. The building had commercial space on the first floor and residential apartments on the second floor. School officials questioned M.G.’s residency after viewing the lease provided as proof of residency, because it was a lease from the family to itself for 10 years with no change in rent. Using software designed to identify students with potential residency issues, the District identified that the family owned two properties: one within the District and one outside of it. Since the student’s residency was potentially suspect, the District authorized an Investigator to dig deeper. The Investigator conducted surveillance at the out-of-District residence for five days, taking notes and photos of the family (including the student) leaving and entering the residence throughout the day and remaining late into the evening when he left. Early the next morning, Investigator observed the family leave the out-of-District residence. Investigator spot checked the in-District residence but didn’t see any of the family’s vehicles there. Later, Investigator saw the student being dropped off at a market near the school but not at the school itself. Investigator speculated this was done to avoid suspicion because a student who actually lived a few blocks from school wouldn’t need to be dropped off. After reviewing Investigator’s report, the District issued a letter to the family stating M.G. was not a resident and requesting that the family meet with the Superintendent. The letter also informed the family that if, after the meeting, they disagreed with the District’s determination then they could request a residency hearing before the Board. The family met with the District, and then the District convened a residency hearing a few weeks later.
 
At the residency hearing, the family acknowledged they owned two buildings, one out-of-District and one in-District. They testified that they operated a flower business on the first floor of the in-District building and that an apartment on the second floor had been their primary residence since December 2012. The apartment has one bedroom and one bathroom, and the family testified M.G. and her high-school student brother shared the bedroom while parents slept in the family room. They further testified that M.G. was in charge of the family’s laundry but because the apartment had no laundry facilities, she used the laundry facility at the out-of-District house. The family admitted that even though the apartment was their primary residence since December 2012, M.G. had been enrolled in out-of-District schools through the end of the 2015-2016 school year. The District presented its case, including the software reports, Investigator’s report and photos, and registration documents and materials, and asserted that the combined factors led the District to believe M.G. lived outside the District. The hearing officer found the family made a “thin” prima facie case of residence in the District, which then shifted the burden to the District to disprove residency. The District met this burden because their evidence was “both persuasive and voluminous.” The hearing officer felt the family was not credible and, though the District’s evidence wasn’t “wholly conclusive,” it overwhelmingly suggested the family’s primary base of operations to be out-of-District. The hearing officer ordered the District to charge M.G. tuition for the 2017-2018 school year. The Board reviewed the hearing officer’s findings, considered written objections submitted by the family, and then adopted and incorporated the hearing officer’s findings and written decision that M.G. was not a resident. The family appealed to the Regional Superintendent, who upheld the Board’s decision.
 
The family then filed suit in the Circuit Court of Cook County. Following a hearing, the Circuit Court affirmed the Regional Superintendent’s decision upholding the Board’s decision. Next, the family appealed to the Illinois Appellate Court.
 
Because this case involved a mixed question of law and fact, the Court reviewed it to determine if the below decisions were “clearly erroneous,” meaning it asked: are we left with the firm conviction that a mistake has been committed? After a thorough review of Illinois School Code residency provisions and cases, the Court held that the hearing officer’s decision was not clearly erroneous. The family urged the Court to weigh the evidence differently, but the Court emphasized that “it is the responsibility of the Board, not the courts, to weigh the evidence and resolve any conflicts in the evidence.” The Court reasoned that because this was an administrative review case, it was required “to affirm the Board’s determination if there is any component evidence in the record to support it.” The Court held that the District’s process was proper and affirmed its decision that M.G. was not a resident.