Recent Court Decisions

An Illinois Appellate Court found, once again, that public officials’ personal text messages and emails that are prepared for, used by, received by, or in the possession of a public body are public records for purposes of FOIA.

The Illinois Appellate Court in the First District affirmed a circuit court order which directed the City of Chicago Office of Mayor (Mayor’s Office) and Chicago Department of Public Health (CDPH) to inquire whether records exist pertaining to the presence of lead in the drinking water at Chicago Public Schools (CPS).
 
On June 7th, 2016, the Better Government Association (BGA) submitted a FOIA request to the Mayor’s Office and CDPH requesting “any and all communication between [the] Public Health Commissioner…and anybody in the mayor’s office and press office from April 1, 2016 to today.” The request was later modified to include “anything related to lead and CPS” and “any and all communication” between the Public Health Commissioner and other CPS officials. The Defendants (Mayor’s Office and CDPH) produced records but redacted or withheld others on the grounds that they were protected by Section 7.1 of FOIA.
 
On April 11th, 2017, the BGA filed a complaint in the circuit court. They argued that the Defendants violated FOIA by redacting and withholding the responsive records. The Plaintiffs (BGA) also argued that the Defendants improperly failed to inquire whether personal text messages and emails of the officials named in the requests contained responsive records.
 
The Defendants claimed that the redactions and withholdings were proper in their answer. The Mayor’s Office acknowledged that the officials named in the request used their personal email accounts for public business, but contended that it did not have the ability or any obligation to search the accounts for the responsive records.
 
On August 21, 2017, the Plaintiffs filed a partial motion for summary judgement. After hearing arguments from both sides, the circuit court held that the Defendant’s redactions were proper. However, the circuit court also held that the Defendants did not perform a reasonable search of the relevant officials because the personal text messages and emails were omitted.
 
To rectify this, the circuit court ordered the Defendants to “make inquiries as required to email custodians and supply affidavits from custodians regarding same” within 28 days. The Defendants went on to appeal the order.
 
In his opinion, the Honorable Michael T. Mullen stated that the Defendants did not cite a specific statutory exemption to make their case. Instead, they insisted that the personal text messages and emails did not constitute public records. To test this claim, Judge Mullen used two criteria (established in City of Danville v. Madigan, 421 Ill.Dec. 792 (2018)) that must be met to determine if the responsive records are public and therefore subject to disclosure under FOIA. First, the record must pertain to public rather than private business. Second, the record “must have been either (1) prepared by a public body, (2) prepared for a public body, (3) used by a public body, (4) received by a public body, (5) possessed by a public body, or (6) controlled by a public body.”
 
Judge Mullens found that the personal text messages and emails were “either prepared for, used by, received by, or in the possession of a public body,” which was sufficient to establish them as public records. For these reasons, the circuit court’s order was affirmed.
 

The PAC held that the Illinois Department of Corrections (IDOC) violated FOIA when it denied a request for data on head injuries of inmates in its custody.
 
On March 15, 2020, a Requestor submitted a FOIA request to IDOC seeking "access to and a copy of aggregate data on head injuries incurred since 2015 by inmates in [IDOC] custody, including time and place of injury, type or severity of injury, and cause of injury.” The request also sought, “records reflecting the department’s policies…regarding evaluating concussions or traumatic brain injuries for inmates and correctional officers or other employees when these happen within correctional facilities.”
 
IDOC responded that it did not have the requested data or policies, and claimed that since the requested records were furnished by their healthcare vendor, Wexford Health Sources, Inc. (Wexford), they were exempt from disclosing any responsive records it might have pursuant to Section 7(1)(g) of FOIA. Requestor submitted a Request for Review contesting the denial, and contended that the records were in fact subject to disclosure pursuant to Section 7(2) of FOIA.
 
Section 7(1)(g) of FOIA exempts, “[t]rade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested.”
 
Section 7(2) of FOIA states that, “[a] public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body[.]”
 
After completing its review, the PAC concluded that IDOC did not establish how the requested records constituted trade secrets, commercial or financial information, or how they would cause competitive harm to Wexford. The PAC held that since Wexford was contracted by IDOC to carry out duties for a public body (i.e. furnishing data), they were obligated to release the requested records. The PAC directed IDOC to release the responsive records to the requestor.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The United States Supreme Court held that terminating employment based on sexual orientation or transgender status constitutes unlawful sex-based discrimination in violation of Title VII of the Civil Rights Act of 1964.

On June 15th, 2020, the United States Supreme Court held that terminating employment based on sexual orientation or transgender status constitutes unlawful sex-based discrimination in violation of Title VII.
 
The Court based its ruling on three different cases. A skydiving instructor and a child-welfare-services coordinator for Clayton County, Georgia sued their respective employers in federal court because they were terminated for being gay. They contended that such terminations violated Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, religion, sex, and national origin. The U.S. Court of Appeals for the 2nd Circuit ruled in favor of the skydiving instructor, however the U.S. Court of Appeals for the 11th Circuit ruled against the child-welfare-services coordinator in Clayton County.
 
The third lawsuit was filed by the Equal Employment Opportunity Commission (EEOC). In this case, an employee of a funeral home was fired because the employee told her employer that she would live as a woman. The district court ruled in favor of the funeral home, contending that Title VII does not protect transgender employees from discrimination. This decision would later be reversed by the U.S. Court of Appeals for the 6th Circuit.
 
The Supreme Court issued one ruling on all three cases. Justice Neil Gorsuch wrote for the majority, which included Chief Justice John Roberts, and Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.
 
Justice Gorsuch stated that the issue of whether an employer could terminate an employee because of sexual orientation or gender identity “is clear.” When an employer terminates an employee for such reasons, the employer “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
 
Justice Samuel Alito wrote a dissenting opinion with Justice Clarence Thomas. Justice Alito argued that the Court improperly legislated the issue of transgender and homosexual discrimination into Title VII under the guise of textualism. He went on to argue that the issue is “not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”
 
Justice Brett Kavanaugh wrote a separate dissenting opinion. He contended that the phrase “discriminate based on sex” in Title VII does not include discrimination based on sexual orientation. Justice Kavanaugh would go on to say that “the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”
 
This decision clarifies that Title VII’s prohibition of sex-based employment discrimination includes discrimination based on sexual orientation and transgender status. This is consistent with the 7th Circuit’s 2017 decision in Hively v. Ivy Tech. Discrimination based on sexual orientation and gender-related identity is also prohibited by the Illinois Human Rights Act.
 

Summary: The Winnebago County Sheriff’s Office violated FOIA when it improperly withheld records relating to a police chase.
 
On March 9th, 2020, the Requestor, a staff writer for the Rockford Register Star, submitted a FOIA request to the Rockford Sherriff’s Office (Sherriff’s Office). The request sought, “[a] copy of any squad car camera footage before, during, and after the Feb. 8, 2016, police chase and fatal crash that killed [a named individual], emergency dispatch audio concerning that case, crash and incident, and any written critique, review or report concerning the attempted traffic stop and fatal crash.”
 
A few weeks later, the Sherriff’s Office denied the FOIA request pursuant to Section 7(1)(d)(iii) of FOIA, citing a pending civil lawsuit related to the crash. The Sherriff’s Office said that, “disclosure would deprive both the County of Winnebago and [the] Sherriff’s Deputy…of their rights to a fair trial or an impartial judication.” Requestor then sent a Request for Review to the PAC to contest the denial of the request.
 
Section 7(1)(d)(iii) of FOIA exempts public bodies from disclosing information that might jeopardize a fair trial. Specifically, it states that, “[r]ecords in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would…create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing” are exempt from disclosure. Under Section 1.2 of FOIA, any public body asserting that a record is exempt from disclosure must prove the exemption with clear and convincing evidence.
 
According to the PAC, the explanation from the Sherriff’s Office did not satisfy the requirements of Section 7(1)(d)(iii) of FOIA because the Sherriff’s Office did not provide any specific reasons as to why the disclosure of the materials requested would impede a fair trial or impartial hearing. For this reason, Sheriff’s Office did not demonstrate by clear and convincing evidence that the records were exempt from disclosure. The PAC ruled that the Sherriff’s Office violated FOIA, and it directed the Sherriff’s Office to comply with the request.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The South Loop Elementary School Local School Council (Council) violated the Open Meetings Act (OMA) during its meeting on February 12th, 2020 when it discussed the schedule and process for evaluating the school’s principal during a closed session.
 
The Requestor, a member of the Council, submitted a request for review to PAC on March 5th, 2020. Requestor alleged that the Council violated OMA by discussing the incorporation of surveys into the evaluation process during closed session. Requestor also stated that the scheduling of the evaluation was improperly discussed in closed session. Requestor raised her objection during the meeting, but another member of the Council insisted that it was fine to discuss these subjects during the closed session because they pertained to the evaluation.
 
Section 2(a) of OMA states that all meetings held by public bodies must be open to the public unless it covers certain subjects listed in Section 2(c). Specifically, Section 2(c)(1) of OMA allows public bodies to enter closed session when discussing “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees, * * * or legal counsel or the public body[.]"  
 
The PAC held that Section 2(c)(1) “applies to discussions concerning specific employees. This exception does not permit a public body to discuss in closed session considerations applicable to categories of employees, such as the process for evaluating their performance.” For this reason, the PAC found that the Council violated Section 2(a) of OMA when it discussed the process and scheduling of the school principal’s evaluation in closed session. The Council was directed by the PAC to make the unauthorized sections of the closed session meeting available to the public.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.