Recent Court Decisions

The Illinois Appellate Court for the 4th District (Court) considered an interlocutory appeal from the Circuit Court of Sangamon County (Circuit Court) and determined that the 1-year statute of limitations period in the Local Government and Governmental Employee Tort Immunity Act (Tort Immunity Act) does not control over the limitations period set out in the Childhood Sexual Abuse Act, which expressly states that its terms apply “notwithstanding any other provision of law.”
 
In April 2019, Plaintiff Michelle Forbes (Plaintiff) filed a complaint against Defendants New Berlin Community Unit School District No. 16 (the District) and Carroll Owen Smith (Smith) seeking damages based on alleged childhood sexual abuse directly and proximately caused by Defendants. Plaintiff alleged counts of willful and wrongful conduct, negligence, negligent failure to follow established policies and procedures, breach of fiduciary duty, and intentional infliction of emotional distress against the District. Plaintiff also alleged counts of assault and battery and intentional infliction of emotional distress against Smith. These counts are based on allegations that between 1985 and 1989, when Plaintiff was a high school student, Smith recruited her to help him with paperwork while the two were alone in his office. While in his office, Smith allegedly then engaged in acts of sexual grooming and sexual abuse against Plaintiff. Plaintiff claimed that she suffered personal, pecuniary, and emotional injuries as a result, but that she did not discover the causal connection of her injuries until 2015, when she was 44 years old.
 
The District responded by filing a motion to dismiss, arguing that Plaintiff’s claims were time-barred by the Tort Immunity Act’s 1-year statute of limitations. Plaintiff argued that her case was not time-barred because the Childhood Sexual Abuse Act applied, and she filed her case within 20 years after her action accrued. The Circuit Court denied the District’s motion to dismiss, and the District then asked the Circuit Court to either reconsider its ruling or, in the alternative, certify the following question for appeal:

“Does the 1-year statute of limitations period in the Local Government and Governmental Employee Tort Immunity Act, 745 ILCS 10/8-101, control over the limitations period set out in the current version of the Childhood Sexual Abuse Act, 735 ILCS 5/13[-]202.2 (effective January 1, 2014), which by its express terms applies ‘[n]otwithstanding any other provision of law’?”
 
The Circuit Court declined to reconsider its ruling but did certify the question for appeal.
 
On appeal, the Court reviewed the limitations periods in both acts. The Tort Immunity Act, which shields local public entities from liability arising from the operation of government, provides that no civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. In contrast the Childhood Sexual Abuse Act, which governs civil actions for sexual abuse of a person under 18 years of age, provides:
 
(b) Notwithstanding any other provision of law, an action for damages for personal injury based on childhood sexual abuse must be commenced within 20 years of the date the limitation period begins to run…or within 20 years of the date the person abused discovers or through the use of reasonable diligence should discover both (i) that the act of childhood sexual abuse occurred and (ii) that the injury was caused by the childhood sexual abuse.
 
Looking to the plain language of these acts, the Court held that the language of the Childhood Sexual Abuse Act clearly applies to claims based upon childhood sexual abuse, despite any other statute of limitations, due to the phrase “notwithstanding any other provision of law.” The Court’s decision is consistent with the decision reached by the Second District Appellate Court in Doe v. Hinsdale Township High School Dist. 86, 388 Ill.App.3d 995 (2nd Dist. 2009), a case that also involved personal injury based on alleged childhood sexual abuse proximately caused by a defendant school district and its employees.
 
 

The Cook County Assessor’s Office (Assessor) violated Section 3(d) of FOIA by failing to respond to a FOIA request.
 
On September 29, 2020, Requestor submitted a FOIA request to the Assessor, seeking information regarding who had filed for a division of an identified property and a copy of the recent application related to the property, which Requestor identified by its Property Index Number. Requestor did not receive a response to his request.
 
On October 21, 2020, Requestor submitted a Request for Review to the PAC, alleging the Assessor failed to respond to his FOIA request. The PAC then wrote to the Assessor regarding this matter, but the Assessor did not respond. After multiple communication attempts by the PAC, on December 15, 2020, the Assessor finally responded to the PAC via a voicemail stating that the Assessor was preparing its response to the FOIA request and anticipated the response would issue within 10 days. As of December 30, 2020, the PAC had not received a written response from the Assessor and Requestor had not received a response to his FOIA request.
 
Section 3(d) of FOIA states that “each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request…” Because the Assessor did not comply with Section 3(d), the PAC ordered the Assessor to take immediate and appropriate action to provide Requestor with all records responsive to his request, subject only to permissible redactions.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The PAC held that the Ogle County Sheriff’s Office (Sheriff) violated FOIA by improperly withholding a police report involving the alleged sexual assault of a named minor.
 
On September 1, 2020, Lawyer submitted a FOIA request to the Sheriff seeking a copy of a July 2013 police report involving the alleged sexual assault of a named minor. In the request, Lawyer indicated the report was for his client, the father of the named minor, for a civil matter. Two days later, the Sheriff denied the FOIA request in its entirety based on Section 7(1)(a) of FOIA (which exempts the disclosure of information specifically prohibited from disclosure by federal or State law), simply stating it could not disclose juvenile reports. Lawyer then asked the PAC to review.
 
The PAC construed the Sheriff’s denial under Section 7(1)(a) as asserting that the Juvenile Court Act (JCA) prohibited disclosure of the police report. On September 15, 2020 the PAC, in a non-binding determination letter, informed the Sheriff that the JCA did not prohibit disclosure of records concerning crimes committed by adults against minors, and it asked the Sheriff if it would change its position on the disclosure. The Sheriff did not respond. Next, the PAC asked the Sheriff to provide it with copies of the withheld police report, along with a detailed explanation of the factual and legal bases for its assertion that Section 7(1)(a) of FOIA allowed it to withhold the police report. This time the Sheriff replied to the PAC, and it eventually provided a copy of the police report to the PAC.
 
On review, the PAC noted that the Sheriff did not provide any arguments or legal authority in support of the supposed Section 7(1)(a) exemption. Instead, the Sheriff simply asserted that “the police report in question…is entirely juvenile related” and because the report “pertains to the questioning of the juvenile and what happened to him” they were prohibited from disclosing it. The PAC noted that the Illinois Appellate Court requires a public body to provide a detailed rationale to satisfy its burden of demonstrating that records are exempt under FOIA, yet here the Sheriff’s response was “generalized and conclusory” – so the Sheriff did not meet its burden.
 
Even so, the PAC evaluated for itself whether the police report could be withheld under Section 7.5(bb) of FOIA, which expressly exempts from disclosure “information which is or was prohibited from disclosure by the Juvenile Court Act.” Looking to the JCA, the PAC noted that Section 1-7A of the JAC states that juvenile law enforcement records may be accessed by the minor who is the subject of investigation, arrest, or custodial detention along with the minor’s parents and any of their legal representatives. Moreover, Section 1-3(8.2) of the JCA defines “juvenile law enforcement record” as those relating to a minor suspected of committing an offense – not those where the minor is a victim, witness, or missing juvenile. Since the police report at issue involved a minor as a victim, the PAC found the JCA does not apply and therefore Section 7.5(bb) of FOIA does not exempt the report from disclosure. The PAC held that the Sheriff’s Office violated FOIA and directed the immediate disclosure of the police report to Lawyer. 
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The PAC held that the Board of Trustees (Board) of the Village of Roanoke violated OMA during a remotely held meeting on September 8, 2020 when it muted a discussion of public business.
 
On September 8, 2020, the Board held a remote meeting via Zoom. Two days later, a member of the public submitted a Request for Review with the PAC, asserting that the Board President had asked another Board member to mute all microphones during a discussion with the Roanoke Village Ambulance Chief and that at this time, the Board did not announce it was entering closed session or otherwise provide an explanation for why all microphones were muted.
 
The PAC construed this as an allegation that the Board violated Sections 2(a) and 7(e)(4) of OMA. Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless a specific exception applies. Section 7(e) of OMA permits public bodies to hold a remote meeting during a public health emergency (such as the current COVID-19 pandemic), and Section 7(e)(4) requires that when such a remote meeting is held, the public body must “allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or web-based link.”
 
The PAC requested that the Board explain how the public was allowed to connect to the September 8, 2020 remote meeting, and to provide copies of the agenda, minutes, and verbatim recording of it. The Board responded that it complied with Section 7(e) of OMA by livestreaming the meeting on Zoom, which allowed for public attendance and participation, but acknowledged that the meeting livestream was muted for approximately one minute. The Board explained that this one minute was essentially a “sidebar” between the Mayor and Village Clerk regarding the appropriateness of discussing a personnel matter in open session or closed session. The Board asserted this one minute “sidebar” did not violate Section 7(e) because it “is not uncommon for sidebars to occur during a public meeting to clarify a matter of procedure” but assured the PAC that it would not mute any future sidebars. 
 
The PAC concluded that Section 7(e)(4) “expressly and unambiguously requires that members of the public be able to contemporaneously hear all open session discussion” and it does not provide an exception for a “sidebar.” The PAC held that because members of the public could not contemporaneously hear the one minute muted discussion, the Board violated Section 7(e)(4) of OMA. To remedy this violation, the PAC directed the Board to make publicly available the complete verbatim record of the open session portion of the September 8, 2020 meeting.  
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

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.