Recent Court Decisions

A school board (Board) violated Section 2.06(g) of OMA during its October 22, 2018 board meeting by enforcing an unestablished and unrecorded rule limiting the public comment portion of the meeting to 15 minutes. Petitioner asserted that over 100 parents and community members attended this particular board meeting, intending to comment on a recent hiring decision, but the Board announced that “in accordance with board rules they ‘had used before,’” members of the public would be permitted to speak for three minutes each for a total of 15 minutes for all speakers. Due to this 15 minute cap, many attendees were unable to make public comment. Petitioner further noted that even though the Board’s policy manual limited comments to three minutes per person, it did not mention a 15 minute cap.

The Board did not dispute that it capped the public comment to 15 minutes, but it pointed to its Welcome Handout, which describes the Board’s general order of business at board meetings and states “members of the public shall be permitted to make comments at each meeting subject to the following time limitations: 3 minutes per speaker, with a maximum of 15 minutes, per topic, per meeting.” When asked about the discrepancy between Board policy and the Board Welcome Handout, the Board explained that even though the 15 minute cap is not in Board policy, it has been the Board’s practice for at least the last 10 years. The PAC found that “[n]othing in OMA suggests that past practices which have not been formally incorporated into a public body’s rules are established and recorded by the public body within the meaning of [OMA] section 2.06(g), and may be enforced to limit public comment.” Though a public body has inherent authority to conduct its meetings in an efficient manner and need not allow public comment to continue indefinitely, the PAC held that there was no evidence that capping public comment to 15 minutes was necessary to maintain decorum or that extending the comment period would have unduly interfered with the orderly transaction of public business. As a result, the PAC ordered the Board to refrain from applying unestablished and unrecorded rules to restrict public comment at future meetings.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

In 2016, Shriver National Center of Poverty Law, a non-profit organization, filed three categorical FOIA requests with the Chicago Board of Education seeking employment records related to alleged misconduct of police officers in CPS schools. The Board ultimately denied each request as unduly burdensome under section 3(g) of FOIA and invited the requester to narrow its requests further, which it failed to do. Shriver subsequently sued the Board, claiming its failure to produce the records was a willful violation of FOIA. Each time, the Board provided rather detailed descriptions as to why each search would have been unduly burdensome, namely that the requests would have involved hundreds of man hours to pull the responsive data and redact exempt information. The appellate court accepted these explanations as sufficient to satisfy the requirements under section 3(g), even for the narrowest request for records which the Board claimed involved 600 records from a one-year timeframe.

Finding that the Board’s reasoning for denying the requests was sufficient, it next applied the section 3(g) balancing test, which requires a public body to show that the burden on the public body outweighs the public interest in the requested information. Shriver claimed that it was seeking the records because they were related to the issue of the school-to-prison pipeline. While the court did not question the public importance of the issue, it was not convinced that Shriver’s broad requests for employment records were relevant to that concern. The court held the board had therefore properly invoked the unduly burdensome exemption in FOIA and dismissed the lawsuit. This case may provide helpful guidance to districts seeking to invoke the section 3(g) exemption in those cases where it cannot come to agreement with a requester on the narrowing of a request it considers burdensome to its operations.

The Rock Island Police Department (Department) violated FOIA by refusing to disclose copies of a traffic accident report because it listed the names of minor passengers. On July 17, 2018, the Petitioner (acting on behalf of a law firm) requested copies of a July 4, 2018 traffic accident report. The Department denied Petitioner’s FOIA request, citing Section 1-7(A) of the Juvenile Court Act (705 ILCS 405/1-7(A)) as the basis for its denial and asserting that “all juvenile records” are sealed. The Petitioner appealed to the PAC, arguing that even though there were some minor passengers listed in the traffic accident report, none of them were investigated, arrested, or taken into custody and therefore Section 1-7(A) does not apply.

In reviewing the matter, the PAC looked to Section 7.5(bb) of FOIA, which exempts from disclosure “information which is or was prohibited from disclosure by the Juvenile Court Act.” It then reviewed Section 1-7(A) of the Juvenile Court Act, which pertains to “juvenile records” and states that all juvenile records that have not been expunged are sealed and may not be publicly disclosed. After analyzing the legislative history of the Juvenile Court Act, the PAC interpreted “juvenile record” to mean records pertaining to a minor who has been investigated, arrested, or taken into custody. Since the minors involved in the traffic accident were mere witnesses and were not investigated, arrested, or taken into custody, the PAC held that the report was not a “juvenile record” under the Juvenile Court Act and therefore Section 7.5(bb) of FOIA did not apply. The PAC reasoned that construing records like this particular traffic accident report to be exempt from disclosure under FOIA would be contrary to FOIA’s express public policy. As a result, the PAC ordered the Department to disclose the report to the Requestor.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The McClean County Board’s Finance Committee (Committee) violated OMA by improperly discussing the duties and salaries of elected officials in closed session. On June 6, 2018, the Committee held a closed meeting using the Section 2(c)(1) exception in OMA, which allows a public body to hold closed meetings to discuss “the appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body.” The problem, however, is that the Committee used this exception to discuss the duties and salaries of two elected officials – the county coroner and the county auditor. The Illinois Attorney General has previously held, in a binding opinion, that Section 2(c)(1) does not authorize closed session discussions concerning occupants of public office. PAO 17-13.

In response, the Committee argued that countywide elected or appointed department heads meet the definition of an employee for purposes of OMA, but the PAC was not swayed by this argument. First, the PAC noted that Section 2(c)(3) of OMA permits closed session discussion of “the discipline, performance or removal of the occupant of a public office, when the public body is given power to remove the occupant under law or ordinance” and the Committee did not use this exception. Second, the PAC noted that Section 2(d) of OMA defines public office for purposes of Section 2 as “a position created by or under the Constitution or laws of this State, the occupant of which is charged with the exercise of some portion of the sovereign power of this State” and that the offices of county coroner and county auditor are both created under the Illinois Constitution. Because the county coroner and county auditor are not public employees, the PAC held that the Committee violated OMA by improperly using the Section 2(c)(1) exception to enter closed session. The PAC ordered the Committee to make publicly available the verbatim recording of the June 6, 2018 closed session meeting.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The Office of the Governor (Governor’s Office) violated FOIA by improperly denying a request as unduly burdensome. On July 12, 2018, the Requestor submitted a FOIA request seeking any emails sent by or to certain identified individuals pertaining to nominations for appointment to any of 14 Illinois public bodies. The Requestor also asked for documents prepared by or in the possession of the identified individuals pertaining to such nominations, but limited the scope of the request to January 1, 2016 through June 30, 2018. On July 19, 2018, the Governor’s Office responded that the FOIA request was unduly burdensome pursuant to Section 3(g) of FOIA because it was “overbroad and vague” because documents could be “directly or indirectly related to a nomination for a board appointment without mentioning the board or potential appointee by name.” The Governor’s Office gave the Requestor an opportunity to narrow his request. On July 20, 2018, the Requestor narrowed his request and stated he was willing to work out a reasonable timeline for production of the request. The Governor’s Office still denied the FOIA request as unduly burdensome, stating its preliminary search yielded more than 44,000 potentially responsive emails and that a manual review of the emails would be necessary to respond to the FOIA request.

Upon review, the PAC first analyzed and rejected the Governor’s Office’s contention that the Requestor’s initial FOIA request was “overbroad and vague.” The PAC found that “a requestor needs only to identify the records being requested by describing their contents” and that FOIA did not require the Requestor to furnish the Governor’s Office with search terms to locate the requested records. Because the FOIA request specifically identified both the individuals who sent/received the emails and the subject matter of them, it reasonably identified the public records sought and was not impermissibly vague or overbroad.

Next, the PAC reviewed the Governor’s Office’s preliminary email search, and found it was not limited in any way to the board appointments. The Governor’s Office explained that it could not further limit its preliminary email search because adding other terms would exclude many relevant emails. However, it turns out that the Governor’s Office did try a more limited search which yielded only 1,783 emails. The Governor’s Office explained that it did not tell the Requestor about the more limited search results because even sifting through those results would be unduly burdensome. The PAC held that the Governor’s Office had not demonstrated how reviewing 1,783 potentially responsive emails would be unduly burdensome, let alone how any potential burden would outweigh the significant public interest in the records. The PAC ordered the Governor’s Office to provide the Requestor with copies of the responsive emails, subject to appropriate redactions under Section 7 of FOIA.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.