Recent Court Decisions

The school district had the right to suspend student C.R. for off-campus, sexually harassing statements he made toward two younger students as they were walking home from school. The Court found that the suspension did not violate C.R.’s First Amendment free speech rights because his speech was tied closely enough to the school to permit its regulation (in other words, a “nexus” to the school existed). It then found that “because the harassment happened in such close proximately to the school, administrators could reasonably expect the harassment’s effects to spill over into the school environment.” Based on this, the Court held that the school could take reasonable disciplinary action against C.R. The Court further held that the school did not violate C.R.’s procedural or substantive due process rights by imposing the suspension.

This case is not binding in Illinois, however, it reflects the increasing trend of courts to recognize the right of school districts to discipline students for certain misconduct that occurs off-campus.

The public body violated Section 2(a) of OMA at its June 6, 2016 meeting by: 1) closing a portion of its meeting to discuss legal matters under the Section 2(c)(11) exception for pending, probable, or imminent litigation without recording or entering into the closed session minutes its basis for finding that litigation was probable or imminent; and 2) discussing the mere possibility of legal action related to a bond sale during closed session without reasonable grounds to believe that a lawsuit was more likely than not to be instituted or that such an occurrence was close at hand. At a previous meeting of the same public body on May 31, 2016, a member of the public addressed the public body regarding the bond sale issue and stated that the public body was “ignoring the residents” and thus “forcing a lawsuit.” Prior to moving into closed session at the June 6, 2016 meeting, however, the same member of the public again addressed the public body, this time to clarify that her group was “not proceeding with a lawsuit. So I wanted to make it clear that if this is in fact the pending or imminent litigation, there is none on our part.” Due to the absence of “reasonable, specifically identified grounds” to believe litigation related to the bond sale was close at hand, the PAC found the public body was not justified in entering closed session. The PAC ordered the public body to make publicly available the portion of the closed session verbatim recording of its June 6, 2016 meeting related to the bond sale issue.

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

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.”