Recent Court Decisions

The Office of the Governor (Governor’s Office) violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request. On March 10, 2017, an individual submitted a request via email for documents concerning “emails that Deputy Governor Leslie Munger sent or received since she became Deputy Governor; and Munger’s daily schedule for the next six months.” Ten days later, the requestor sent a follow-up email stating she had not received a response to her FOIA. Continuing to receive no response, the requestor sent six emails between April 18, 2017 and May 4, 2017 inquiring about her FOIA request. On May 5, 2017, the requestor still had not received a response from the Governor’s Office and requested the PAC review the matter. The PAC forwarded the Request for Review to the Governor’s Office twice but, as of the date of this binding opinion, had not received a response.

The PAC found that the Governor’s Office violated Section 3(d) of FOIA by failing to appropriately respond to a FOIA request. The PAC ordered the Governor’s Office to immediately provide all records in response to the FOIA requestor, subject only to any permissible redactions under Section 7. Again, the bottom line here is that public bodies must respond to FOIA requests within the time permitted per statute.

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

The Better Government Association (BGA) issued a FOIA to the Illinois High School Association (IHSA) for all of its contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012-13 and 2013-14 fiscal years. The IHSA responded that it was a not-for-profit charitable organization not subject to FOIA. BGA subsequently requested the same records from District 230, a member public school district of IHSA. The District responded that it did not have the requested records, and that the requested records did not fall under section 7(2) of FOIA because they were not prepared by or for the District, were not used by, received by, in the possession of, or under the control of the District, and did not pertain to the transaction of the District’s public business. BGA challenged the denials by filing a complaint against both IHSA and the District. IHSA and the District filed a motion to dismiss, which the trial court granted, finding that IHSA is not a public body subject to FOIA and that Section 7(2) of FOIA did not apply to the District because IHSA was not performing a governmental function on behalf of the District. The appellate court affirmed the trial court’s decision.

The Illinois Supreme Court affirmed the lower court’s decision. It found that IHSA does not fall within one of the specifically enumerated bodies of the State or local government, and used a four-part test to determine that it is not “any subsidiary” of a governmental unit subject to FOIA.

The Court also looked at whether IHSA contracted with District 230 to perform a governmental function on the District’s behalf and, if so, whether the requested records were directly related to that governmental function. The Court found that the responsibility to govern and coordinate interscholastic athletic competitions for public and private school students is not one of the functions of the District as set forth in the School Code. Therefore, IHSA was not acting on behalf of the District to perform the District’s responsibilities, nor did the District delegate any of its governmental functions to the IHSA. Because IHSA was not contracted to perform a governmental function on behalf of the District, the requested records are not public records of the District under Section 7(2) of the FOIA.

Cassandra Black, IASB Law Clerk

A public body violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request. An individual submitted a request via email on Jan. 4, 2017 for a copy of a police report and documents related to a police pursuit that began in East St. Louis on the morning of Dec. 13, 2016. Twelve days after making the request, the requestor had yet to receive a response and requested the PAC review the City’s failure to respond. The City did not respond to the PAC’s first correspondence regarding this matter, but it responded to the PAC’s second correspondence by indicating that the request had been forwarded to the Police and City Attorney. On March 1, 2017, the requestor resubmitted her FOIA request and was informed by the City Manager that he would work with the police department to fulfill her Jan. 4, 2017 request. As of April 18, 2017, the City had not responded to the FOIA request.

The PAC found that the City violated Section 3(d) of FOIA by failing to provide the requested records, to extend the time for its response, or to deny the request in whole or in part within five business days of receiving the request. The PAC ordered the City to immediately provide all records in response to the FOIA requestor, subject only to any permissible redactions under Section 7. Again, the bottom line here is that public bodies must respond to FOIA requests within the time permitted per statute.

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

Cassandra Black, IASB Law Clerk

Petitioner Endrew F., a student with autism, attended school in Douglas County from preschool to fourth grade and received special education services through an Individualized Education Program (IEP) during this time. When the District proposed his fifth grade IEP, Endrew’s parents removed him from public school and unilaterally placed him at a private school that specializes in educating students with autism because they did not believe he was making meaningful progress on his IEP goals. During the fall of Endrew’s fifth grade year, the District proposed a new IEP, but parents rejected it claiming that the final IEP proposed by the District did not provide Endrew with a Free Appropriate Public Education (FAPE), as is required by the Individuals with Disabilities Education Act (IDEA). Endrew’s parents filed a complaint seeking reimbursement for private tuition. In response to parents’ claim, an Administrative Law Judge found in favor of the District. The District Court and Tenth Circuit affirmed this decision.

The Supreme Court first addressed the FAPE requirement 35 years ago in Board of Education of Hendricks Hudson Central School District v. Rowley. The Rowley court held that a student has received FAPE if the student’s IEP is “reasonably calculated to enable the child to receive educational benefits.” The Rowley court stated that for students who are receiving instruction in the regular classroom, this would typically require an IEP “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”

The U.S. Supreme Court agreed with the Rowley decision that for students included in the general education environment, an IEP should typically be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” The Court recognized, however, that this standard may not be appropriate for all students with disabilities, and for students not included in the general education setting IDEA requires that the IEP be “appropriately ambitious in light of [the student’s] circumstances.” The Court held that the substantive obligation under IDEA requires a district to offer an “educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” While this standard is significantly more demanding that the “merely more than de minimis” standard applied by the Tenth Circuit, it is less demanding than the parents’ proposed standard that students with disabilities be provided with educational opportunities that are “substantially equal to the opportunities afforded children without disabilities.” The Court declined to elaborate on what “appropriate” progress looks like, stating that this will depend on the unique circumstances of each child. The Court stated that when a court is reviewing the IEP, it must look at whether the IEP is “reasonable,” not whether it is “ideal,” and that deference should continue to be given to school authorities based on the application of expertise and exercise of judgment.

Cassandra Black, IASB Law Clerk

Petitioner E.F., a student with cerebral palsy, had a service dog recommended by her pediatrician to help her with daily life activities. When E.F. was in kindergarten, her parents requested that the service dog accompany E.F. to school. The School District denied this request on the basis that the human aide assigned to E.F. through her Individualized Education Program (IEP) was able to address E.F.’s needs, rendering the service dog unnecessary. E.F.’s parents began homeschooling E.F. and filed a complaint with the Department of Education’s Office for Civil Rights (OCR), claiming that the exclusion of E.F.’s service animal was a violation of her rights under Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504). After OCR found in favor of E.F., the school invited E.F. to return to school with the service dog. Parents opted to enroll E.F. in another school district and then filed suit in federal court against the local and regional school district and principal (School Districts), alleging they violated the ADA and Section 504 by denying E.F. equal access to the school and its programs, refusing to reasonably accommodate E.F.’s use of a service dog, and discriminating against E.F., seeking declaratory and monetary relief. The District Court granted the School Districts’ motion to dismiss the suit, holding that §1414(l) of the Individuals with Disabilities Education Act (IDEA) required E.F. to first exhaust the IDEA’s administrative procedures. The Sixth Circuit affirmed.

The U.S. Supreme Court, in an 8-0 ruling, held that exhaustion of the IDEA’s administrative procedures is unnecessary when the essence of the complaint is something other than the denial of IDEA’s core guarantee of a “free appropriate public education” (FAPE). Because the only relief provided through IDEA’s administrative procedures is relief for the denial of FAPE, this must be the substance of the plaintiff’s complaint for IDEA’s administrative procedures to apply. If a suit is brought under a different statute, such as the ADA or Section 504, and the relief sought is not for the denial of a FAPE, exhaustion of the IDEA’s procedures is not required.

The Court stated that courts must look at the substance of a claim to determine if a plaintiff is seeking relief for the denial of FAPE. The Court provided two questions to help determine whether the substance of the claim is denial of FAPE. First, “Could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library?” Second, “Could an adult at the school—say an employee or visitor—have pressed essentially the same grievance?” If the answer to either question is yes, is it not likely that the complaint is about FAPE. If the answer to both questions is no, however, it is likely that the complaint does concern FAPE. The Court also suggested another clue that the case is about a denial of FAPE can be ascertained by looking at the history of the proceedings. If the plaintiff initially sought relief through IDEA’s administrative remedies, this may suggest the substance of the claim is a denial of FAPE.

The Court has remanded the case back to the Sixth Circuit to determine whether the Frys utilized the IDEA’s dispute resolution process prior to filing a federal suit. If so, the Sixth Circuit needs to determine whether the Frys’ actions indicate that the substance of their complaint is related to a denial of FAPE, thus requiring further exhaustion of IDEA’s administrative procedures.

This decision means that a plaintiff can bring a suit under antidiscrimination statutes such as the ADA or Section 504, without first exhausting IDEA’s administrative procedures if the gravamen of the complaint is not relief sought for the denial of FAPE.

Cassandra Black, IASB Law Clerk