Recent Court Decisions

CNN submitted a FOIA request to the Chicago Police Department (CPD) for “all emails related to Laquan McDonald from Police Department email accounts and personal email accounts where business was discussed” for 12 named CPD officers for specific date ranges. In response, CPD searched for emails on the officers’ CPD email accounts which contained the complete name “Laquan McDonald.” CPD then disclosed over 500 pages to CNN without citing any exceptions or explanations for the records. CNN filed a Request for Review with the Public Access Counselor (PAC), alleging the records produced were not responsive and that CPD did not conduct an adequate search for responsive records. During the PAC’s review, CPD confirmed it had not searched the 12 officers’ personal email accounts for responsive records and argued that emails on such accounts are not “public records” subject to FOIA. The PAC disagreed, finding that “CPD’s interpretation would undercut the principle that public bodies act through their employees, by excluding from the definition of ‘public records’ communications sent or received by employees of a public body on personal devices or accounts, regardless of whether the communications pertain to the transaction of public business. Such an interpretation erroneously focuses not on the content of a communication, but on the method by which it is transmitted.” CPD countered that FOIA provides no mechanism for it to compel employees to grant CPD access to their personal email accounts. The PAC advised that CPD itself did not necessarily need to conduct an automated search of the officers’ personal email accounts; it could instead meet its obligation to search the personal email accounts by initially ordering the CPD officers themselves to search their own personal email accounts and turn responsive records over to CPD. The PAC ordered CPD to do just that; it also ordered CPD to expand the scope of its search of CPD email accounts to include other search terms, such as alternate name spellings, the names of officers involved, the incident number, the location of the incident, and a physical description of Mr. McDonald.

The take away here is that public bodies must conduct a reasonable search for public records responsive to a FOIA request, which includes searching public employees’ communications on personal devices or accounts for records pertaining to the transaction of public business.

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

For the fourth time this calendar year, the PAC has told public bodies they must respond to FOIA requests. An individual submitted a seven-part FOIA request to a Village for various positions, names and salaries of Village employees and contractors, as well as billing and payments made to contractors or received from legislative counsel. The Village did not respond to the FOIA request within five business days, extend its timeline for a response under Section 3(e), notify the FOIA requestor that the Village was treating the request as voluminous in accordance with Section 3.6, or deny the request in writing. The Village then repeatedly failed to respond to subsequent requests by the Public Access Bureau that it respond to the FOIA request. The PAC ordered the Village to immediately provide all records responsive to the FOIA requester, 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.

Plaintiff Better Government Association (BGA) issued a FOIA to the Illinois High School Association (IHSA) for all of IHSA’s contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012-2013 and 2013-2014 fiscal years. IHSA responded by stating it was not subject to FOIA because it was a 501(c)(3) nonprofit charitable organization. BGA then issued a FOIA to Consolidated High School District 230 (District 230) for the same records, seeking them under FOIA Section 7(2), which provides 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, for purposes of this Act.” 5 ILCS 140/2. District 230 responded that it did not have any of the requested records in its possession.

Next, BGA filed a complaint in circuit court alleging both IHSA and District 230 violated FOIA, asking that the court declare IHSA to be a subsidiary “public body” subject to FOIA because it performs a governmental function on behalf of its member schools, and asking that the court order IHSA and District 230 to produce the requested records. The circuit court dismissed BGA’s complaint. Applying a three-part test articulated in Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence (64 Ill.App.3d 94 (1978)), the circuit court held that IHSA is not a subsidiary public body covered by FOIA. The circuit court further held that FOIA Section 7(2) did not apply to District 230 because IHSA did not perform a governmental function on its behalf.

BGA appealed and the appellate court affirmed the circuit court’s dismissal. In so doing, the appellate court also relied upon the Rockford Newspapers, Inc. test to hold that IHSA is not a subsidiary public body covered by FOIA. It further held that BGA could not obtain the IHSA records through District 230 via FOIA Section 7(2) because BGA had not established that the IHSA’s records were “public records.”

For the third time this calendar year, the PAC has told public bodies they must respond to FOIA requests. On April 5, 2016, a Chicago Sun-Times Staff Reporter (“Requestor”) submitted a FOIA request via email to the Chicago Police Department (CPD) for various district-by-district sworn CPD staffing levels and personnel orders. On April 20, 2016, CPD’s FOIA Officer sent an email to Requestor with an attached letter dated April 13, 2016 that stated CPD was extending the time period for its response under Section 3(e) by five business days. On April 22, 2016, Requestor emailed CPD to note that 10 business days had passed and to ask when the documents would be ready. On April 25, 2016, CPD’s FOIA Officer responded via email, stating he was waiting for records from another department and would update Requestor on April 29, 2016. On May 5, 2016, Requestor emailed CPD for a status update. On May 11, 2016, CPD’s FOIA Officer emailed Requestor to request an extension for a response. Requestor then requested a specific date on which the records would be ready, but CPD did not respond with a specific date. Even upon request by the Public Access Bureau, CPD did not provide Requestor with a response to his FOIA request. The PAC found that CPD violated Sections 3(a) and 3(b) of FOIA by failing, within five business days, to: respond to Requestor’s FOIA request; provide the requested records; properly extend the timeline for its response per Section 3(e); or deny the request in whole or in part. The PAC ordered CPD to immediately provide all responsive records to Requestor, subject only to any permissible redactions under Section 7 of FOIA. 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 U.S. District Court for the Northern District of Illinois enjoined (stopped) Rich Township High School District 227 from enforcing its policy, expressed verbally during board meetings and in writing on board agendas, encouraging individuals to “refrain from mentioning the name of students and employees” during the public comment portion of its board meetings. Here, Plaintiff Mnyofu had been speaking during the public comment portion of a board meeting for over two minutes when he began criticizing individuals by name. In response, the board president asked for the microphone to be turned off, a security guard to stop Mnyofu from speaking, and the police to be called. Mnyofu continued to speak for approximately three more minutes before leaving the meeting. In finding that Mnyofu was entitled to a preliminary injunction to stop the board from enforcing this policy, the court did not reach the merits of Mnyofu’s claim that the board’s policy prohibits criticism of school officials and thus that the board intends to prohibit speech based on its content.