Recent Court Decisions

The Illinois Department of Agriculture violated FOIA by improperly redacting information from responsive material as prohibited from disclosure by State law under Section 7(1)(a).
 
On December 6, 2019, a requestor on behalf of the Chicago Tribune (Requestor) submitted a FOIA request to the Illinois Department of Agriculture (IDA) seeking copies of all applications for adult use cannabis cultivation center licenses. Requestor specifically stated that while he understood some information would need to be redacted for privacy (e.g., social security numbers), he stated he expected the names and addresses of each principal officer and board member to be included “in keeping with the intent of the sponsors [of the Cannabis Regulation and Tax Act] to provide transparency to this newly legal industry.”
 
Later that month, IDA responded by providing copies of the applications but it redacted: 1) names of owners, principal officers, and board members of cannabis cultivation centers, 2) facility addresses, and 3) dates of birth of principal officers and board members of cannabis cultivation centers. Requestor disputed these redactions with the PAC.
 
Upon review, IDA asserted that: the names of cultivation centers’ principal officers and board members, as well as street addresses of cultivation centers, were redacted under Section 7(1)(a) of FOIA, which exempts from disclosure any information specifically prohibited from disclosure by federal or State law. IDA further asserted that dates of birth were redacted under Section 7(1)(c) of FOIA, which exempts from disclosure personal information whose disclosure would constitute a clearly unwarranted invasion of personal privacy. Regarding the Section 7(1)(a) assertion, IDA contended that the information was prohibited from disclosure by sections 145(a) and 145(a)(2) of the Compassionate Use of Medical Cannabis Act (MCA), which prohibit disclosing records kept by the IDA for the purpose of administering the MCA. This includes applications by or on behalf of cannabis cultivation centers.
 
The PAC stated that the MCA does not pertain to adult use cannabis facilities, since their licenses are regulated by the Cannabis Regulation and Tax Act.  That means that the information redacted on the applications in question were not prohibited from being disclosed by State law. However, the PAC found that IDA properly redacted birth dates on the applications pursuant to Section 7(1)(c) of FOIA.
 
For these reasons, the PAC held that IDA violated FOIA by improperly redacting information under Section 7(1)(a).
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

Continuing the Illinois courts’ historical trend of denying constitutional challenges to the State’s public education funding system, the Fifth District Appellate Court (Court) held that the Circuit Court of St. Clair County properly dismissed a complaint filed by 21 Illinois school districts (Plaintiffs) against Governor Pritzker and the State of Illinois (Defendants) alleging inadequate school funding in violation of the Illinois Constitution.
 
In 1997, the Illinois State Board of Education (ISBE) adopted the Illinois Learning Standards, which set forth certain skills that Illinois students must demonstrate at different grade levels. Since then, the Learning Standards have developed and evolved to include Common Core State Standards for English, Language Arts, and Mathematics.
 
Plaintiffs’ complaint alleged that while the State required them to adhere to the Learning Standards and Illinois passed the Evidenced Based Funding Act of 2017 (Funding Act) (allowing under-resourced districts to apply for additional funding to meet the Learning Standards requirements), Defendants were not providing adequate funding to their under-resourced districts. Specifically, in Count I Plaintiffs alleged that ISBE calculated that the State must spend an additional $7.2 billion (or $15.7 billion annually) to provide students with the “high quality” education required by Article X of the Illinois Constitution, and failing to do so violates the Illinois Constitution. In Count II, Plaintiffs alleged that disparities in per pupil expenditures across Illinois school districts have no legitimate basis in law, and operating such an unconstitutional system of public education deprives Plaintiffs and their students of equal protection in violation of Article I of the Illinois Constitution. In relief, Plaintiffs sought a declaration that Defendants have a constitutional obligation to provide adequate funding, determined by ISBE and pursuant to the Funding Act.
 
Defendants filed a motion to dismiss the complaint, asserting that: 1) Plaintiffs lacked standing to assert the rights of the students in their districts, 2) Defendants were immune due to the doctrine of sovereign immunity, which protects the State and state actors like the Governor from lawsuits and says that Illinois can only be named as a defendant in the Court of Claims, 3) Plaintiffs failed to state a cause of action for a deprivation of constitutional rights, and 4) the Governor was not a proper party in Plaintiffs’ complaint because he did not have the power to ensure that the State would set aside enough money for the under-funded districts. The circuit court granted Defendants’ motion to dismiss with prejudice, and Plaintiffs appealed.
 
On appeal, the Court first agreed that the doctrine of sovereign immunity protects the State from suit, and it dismissed the State of Illinois as a Defendant. For argument’s sake, however, the Court did not determine if sovereign immunity protected the Governor and it analyzed Plaintiffs’ claims against him. Regarding Count I, the Court cited Illinois Supreme Court precedent established in Committee for Educational Rights v. Edgar, 174 Ill. 2d 1 (1996), which held that determining whether educational institutions and services in Illinois are “high quality”  is “outside the sphere of judicial function.” Plaintiffs argued that this case differed because we now had Learning Standards and the General Assembly had defined what funding is required for “high quality” education under the Funding Act. The Court was not swayed, finding that only the Illinois Supreme Court could disturb its previous holding, and it dismissed Count I. Regarding Count II, the Court again deferred to Edgar, which had also considered the same question posed by Count II and had determined that the State’s public education funding system is rationally related to the legitimate State goal of promoting local control – meaning the courts would not interfere. For these reasons, the Court affirmed the dismissal of Plaintiffs’ complaint with prejudice.
 
Notably, Justice Wharton dissented in part, stating “I believe that we have a duty to address the education quality and funding issues presented by the 21 plaintiffs instead of ignoring or postponing this critical issue of utmost urgency and importance to our citizens and our State with an overly-broad application of Edgar’s holding.” Wharton pointed out that while courts must defer to supreme court precedent “regardless of the impact of any societal evolution that may have occurred,” the issues in this case involved legislative evolution that modified and established a de facto definition of the constitutionally-mandated “quality education.” Regarding the local control argument Edgar spoke to, Justice Wharton stated that “[P]laintiffs only plead for adequate educational funding resources to exercise some degree of ‘local control.’”

The Will County Circuit Court denied Plaintiffs’ petition for a Temporary Restraining Order to prohibit the City of Joliet City Council (Joliet) from proceeding with a vote on a controversial land annexation during a meeting held under relaxed Open Meetings Act (OMA) meeting standards due to the COVID-19 pandemic, finding that the vote did not violate OMA.
 
OMA requires that all meetings of public bodies be open to the public and be held at specific times and places which are convenient and open to the public, meaning they allow for reasonable accessibility. Due to the COVID-19 pandemic, the Governor issued Executive Order 2020-07, suspending the requirement for members of a public body to be physically present and suspending the conditions that would normally limit when remote participation is permitted. Executive Order 2020-07 also encouraged public bodies to provide video, audio, and/or telephonic access to ensure that members of the public could monitor meetings that are “necessary.” Plaintiffs alleged that Joliet’s meeting was not “necessary” because it had nothing to do with pandemic response and there was no indication that residents would be harmed if the vote was postponed. Plaintiffs further alleged that even if the meeting was deemed “necessary,” Joliet had made no effort to make the meeting accessible to people lacking cable TV or internet access because the meeting could only be attended by phone if someone pre-registered online and waited for a call back.
 
Regarding Plaintiffs’ first allegation, that the meeting was not “necessary,” the Court stated “it would be judicial activism for this Court to tell Joliet what is, and is not, important to Joliet” and that such a matter was for Joliet’s elected officials to decide. Regarding Plaintiffs’ second allegation, that the meeting was not accessible, the Court noted that Joliet had announced the meeting five days in advance, was permitting the public to comment by telephone or email, and the meeting would be shown live on public access television, on Joliet’s website, and through social media. As for people without access to cable television, telephone, or internet, the Court stated that “is a relatively small segment of the population, and the law requires only a reasonable opportunity to participate” and thus Joliet had complied with its OMA obligations. Despite finding for Joliet, public bodies should be cautious in their use of the relaxed OMA standards during the pandemic because the Court disdainfully stated that “[t]he Court was not born yesterday. Having this meeting in the way the City has decided is shady and does a disservice to the public. But that does not make it illegal.”
 

The United States Court of Appeals for the Seventh Circuit (Court) dismissed a former teacher’s claim that she was given an “unsatisfactory” performance rating in retaliation for speech she engaged in while acting as the union’s representative, which she alleged violated her First Amendment free speech rights, but it remanded her case for further proceedings to determine if she was afforded Fourteenth Amendment due process rights.
 
Plaintiff Carolyn Mascow (Mascow) was a tenured teacher employed by Franklin Park School District No. 84 (the District) in 2017 when she was laid off. Her latest performance evaluation at the time was “unsatisfactory,” meaning she was first in line for layoff when the school lost one position and she was not eligible for recall if the school began hiring again, which it did. Mascow sued the District, alleging that she was given the “unsatisfactory” performance rating in retaliation for two positions she took when acting as union co-president, the first in the summer of 2014 and the second in the summer of 2015.
 
The district court, in reviewing Mascow’s First Amendment claim, held that a reasonable jury could not find that the 2014 and 2015 acts led to Mascow’s 2017 “unsatisfactory” performance rating. In so ruling, it pointed out that Mascow began serving as co-president in 2010, when she met with school officials often and initially had good performance ratings. Moreover, Mascow’s co-president (who was also involved in the 2015 matter) had received an “excellent” performance rating. As for Mascow’s Fourteenth Amendment claim, the district court found that even though Mascow had a property interest in her job, Illinois does not offer hearings to laid-off teachers. Because Mascow did not have a right to a hearing, it found that she did not have a property right either and lacked a constitutional claim.
 
Reviewing these facts and the district court’s decision, the Court agreed with the district court’s conclusion regarding the First Amendment claim. The Court, however, was not persuaded by the district court’s reasoning on the Fourteenth Amendment claim that if someone does not have a State right to a hearing then it “knocks out” a due process claim under federal law. Instead, the Court focused on the fact that Mascow received her “unsatisfactory” performance rating one month before being laid-off and it inquired whether she had an opportunity for a hearing regarding the adverse rating. Though neither State law nor the District offers a formal process for contesting an adverse rating, the litigants agreed that teachers have informal opportunities to seek review. The District contended that an opportunity for face-to-face discussions and written submissions regarding ratings supplies all the due process required for an adverse evaluation, but Mascow responded that she had asked the Superintendent to raise her rating yet he “refused to even entertain the possibility.” Because the record before the Court did not address how teachers can obtain review of their ratings and whether those opportunities would satisfy constitutional due process requirements for some kind of hearing, the Court vacated the district court’s decision on the Fourteenth Amendment claim and remanded it for further proceedings.
 

The Public Access Counselor (PAC) dismissed a complaint alleging that the McHenry County Board of Health (Board) violated section 2.06(g) of OMA during its meeting held on March 23, 2020.
 
The requestor stated in his request for review that the public had no opportunity to comment at the meeting. The agenda produced by the Board stated that it would hold a “virtual meeting” on March 23, 2020. A link was provided in the agenda so that members of the public could listen. The agenda also instructed the public to submit any comments or questions via email two hours prior to the meeting.
 
According to section 2.06(g) of OMA, “[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.”
 
On March 9, 2020, the Governor of Illinois declared all counties in the state a disaster area in response to the outbreak of Covid-19. The Disaster proclamation will remain in effect for 30 days after issuance. In addition to the disaster proclamation, the Governor of Illinois also issued Executive Order 2020-07 on March 16, 2020. This executive order suspended the parts of OMA that require in-person attendance for meetings and set limitations on remote participation. On March 20, 2020, the Governor issued Executive Order 2020-10. Executive Order 2020-10 prohibited citizens from leaving their homes with certain exceptions and limited business operations.
 
The PAC said that it would be, “illogical to construe [OMA] as prohibiting a public body from meeting remotely during public health emergencies because the limitations of meeting in such a format may necessitate a temporary change in the public body’s method of allowing public comment.” The PAC also noted that section 2.06(g) of OMA doesn’t require public bodies to answer questions or to interact with the public. The PAC stated that allowing members of the public to submit questions via email was sufficient to satisfy section 2.06(g) of OMA. Given these facts and circumstances, the PAC determined that no further action was necessary in this matter.
 
Note: We have summarized this non-binding opinion as it may help districts understand how the PAC is interpreting Executive Order 2020-07 on OMA.