Recent Court Decisions

On April 13, 2022, Requestor submitted a Request for Review to the Public Access Counselor (PAC) complaining that the Shelby County Board Farm Committee (Committee) had violated OMA by voting on two items – hiring an individual to buy crop insurance and borrowing $7,500 for crop expenses – even though these items were not listed on the agenda for its April 7, 2022 meeting. The Committee asserted that it had provided sufficient advanced notice of these actions because they were “germane” to a matter listed on its agenda as “Discussion and vote on recommendation to the County Board regarding farming options for the County Farm.”

Section 2.02(c) of OMA requires that a public body’s posted agenda “set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.” The PAC noted that the Illinois Supreme Court indicated, in Bd. of Educ. of Springfield Sch. Dist. No. 186 v. Atty Gen. of Ill., that Section 2.02(c) requires a public body’s agenda to include sufficient detail to notify members of the public of the types of final actions that public bodies anticipate taking. Taken together, the PAC found this to mean that the general subject matter of the Committee’s final actions were to recommend that the County Board (1) borrow money for crop expenses, and (2) attain crop insurance. Because the Committee’s agenda did not contain agenda items identifying these as general subject matters of its final actions, the PAC held that the Committee violated Section 2.02(c) of OMA. The PAC directed the Committee to include the general subject matter of its anticipated final actions on its agenda for future meetings.

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

On February 15, 2022, Requestor submitted a Request for Review to the Public Access Counselor (PAC), complaining that the Board of Education of Community Consolidated School District No. 93 had “voted” to make masks optional in the District without including an action item on the agenda. At its regular meeting on February 10, 2022, the Board had a thorough discussion about the COVID-19 mitigation plan presented by the Superintendent and came to a consensus to remove the mask requirement and instead recommend masking. The Board directed the Superintendent to send out messaging that the masks would be recommended, but not required, beginning February 14, 2022. The Superintendent’s subsequent message to the school community indicated that the Board had made the decision at its last board meeting to transition away from the mask requirement.
 
The Board contended that it did not violate Open Meetings Act (OMA) because while it discussed the mitigation plan during the meeting, it never took a roll call vote on the plan. In support of its position, the Board cited several Illinois court cases holding that there is no final action under OMA unless there is a public vote. Nevertheless, the PAC found that failure to treat the board’s consensus decision as a final action under OMA would be contrary to the legislative intent provided in Section 1 of OMA, to give “citizens advance notice of and the right to attend all meeting at which any business of a public body is discussed or acted upon in any way.” The PAC stated that “OMA does not permit a public body to make and implement a decision concerning a substantive matter, such as masking guidelines in public schools for student and staff during a pandemic, without providing the general subject matter of that decision on the meeting agenda.”
 
This PAC opinion serves as a reminder that public bodies are less likely to attract OMA complaints if they err on the side of transparency, especially when it comes to more controversial issues in which there is a high level of public interest.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

On November 8, 2021, Requestor, on behalf of CBS Chicago, requested from the City of Chicago’s Department of Human Resources (1) disciplinary records for a specific City employee, (2) records of any complaints of racism, discrimination, or harassment made against that employee, and (3) records of any complaints of racism, discrimination or harassment filed in the past 5 years against City employees who worked at a specific Streets and Sanitation Facility.  The City provided records in response to the first request but denied the second and third requests in their entirety on two bases. First, the City claimed the responsive records were exempt from disclosure under Section 7(1)(c), because they contained personal information that if disclosed, would constitute a clearly unwarranted invasion of privacy. The City claimed that the privacy rights of the complainants outweighed the public interest in the records, and it claimed that if the records were released, complainants would be less likely to come forward. Second, the City claimed the records were exempt under Section 7(1)(f) because they contained pre-decisional and deliberative material.
 
Regarding Section 7(1)(c), the PAC concluded that the responsive records must be disclosed because it was not an unwarranted invasion of personal privacy under Section 7(1)(c) to disclose information that bears on the duties of public employees, even if doing so would discourage the filing of future complaints. Additionally, the PAC found the public’s interest in knowing about the extent of discrimination that may exist in a taxpayer-funded department (even if ultimately unfounded) outweighed the complainant’s privacy interests. However, to protect individuals’ privacy, the PAC stated that the identifying information of complainants, witnesses, and third parties mentioned in the records, as well those portions of the complaints that included graphic or salacious details or details about the complainant’s families or private lives could be redacted.
 
The PAC also rejected the City’s reliance on the exemption in Section 7(1)(f), noting it only exempts from disclosure records “in which opinions are expressed, or policies or action are formulated.”  Here, the PAC concluded that while the complaints are preliminary in nature, they did not reflect any decision-making process by the City; they were limited to factual information and allegations.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The Village of Mount Prospect (Village) violated FOIA by improperly denying a FOIA request from a journalist.

On January 3, 2022, Requestor, on behalf of a local newspaper, submitted his FOIA request to the Mount Prospect Police Department (Police Department). The request sought a copy of an email that a retiring police chief from the Police Department sent to the rest of the employees.

The request was denied by the Village’s FOIA officer pursuant to section 7(1)(c) of FOIA the next day. The officer described the email as “very personal” and “the Chief’s last heartfelt message to his team upon his retirement.” An amended response was sent later that day with a disclosed copy of the email with most of the contents redacted pursuant to section 7(1)(c) of FOIA.

On January 14, 2022, Requestor submitted the copy of the email to the PAC along with a Request for Review disputing the redactions. Requestor said that his newspaper was informed that the “goodbye email” the retiring police chief sent to the Police Department contained information about the Police Department. The Village responded to the Request for Review by arguing that the redactions were justified under section 7(1)(f) of FOIA in addition to section 7(1)(c). They also said that the email was not a public record subject to the requirements of FOIA and that releasing an unredacted version of the email would be an invasion of personal privacy, because the contents contained personal thoughts and opinions of the police chief.

Section 7(1)(c) of FOIA exempts “[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The PAC noted that the email in question, which was sent while the police chief was employed with the Police Department, discusses Police Department policies and procedures as well as employee conduct.

Section 7(1)(f) of FOIA exempts “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record is publicly cited and identified by the head of the public body.”

The PAC argued that the Village’s argument for redacting the email based on section 7(1)(f) did not hold up because in order to qualify for exemption that the records must be “actually related to the process by which policies are formulated.” The email was not relevant in this way according to the PAC.

The PAC also noted that the police chief was still employed with the Police Department at the time of the email, which means that the opinions expressed in the email were in fact public records and not personal opinions.

For these reasons, the PAC directed the Village to send the Requestor an unredacted copy of the email, with the exception of personal email addresses and phone numbers.

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

In the case of Houston Comm. College System v. Wilson, the Houston Community College’s Board of Trustees adopted a public resolution issuing a “disciplinary censure” against one of its elected trustees, David Wilson, for conduct “not consistent with the best interests of the College” and “not only inappropriate, but reprehensible.” Specifically, Mr. Wilson publicly complained of ethical and bylaw violations by the Board, arranged robocalls to constituents of certain trustees to publicize his views, hired a private investigator to determine the residency of a trustee, and filed multiple lawsuits against the Board, costing it considerable sums of money to defend. 

Mr. Wilson challenged the board’s censure of him in court, claiming his First Amendment rights were violated when the Board issued the “disciplinary censure” against him. Mr. Wilson did not claim the contents of the censure resolution were false or defamatory. The Court dismissed his claim, finding that the Board’s mere verbal censure (even if called a “disciplinary censure”) did to rise to the level of an “adverse action” necessary to obtain relief. The Court noted this country’s long tradition of publicly censuring lawmakers for their misconduct, stating that elected officials are expected to "shoulder a degree of criticism about their public service.” The Court held that the Board’s speech in the form of a censure against
Mr. Wilson was not actionable because it did not deter Mr. Wilson, also an elected official, from exercising his own right to speak. Nor did the censure deny Mr. Wilson any privilege of his office or prevent from doing his job as a board member. Finally, the Court noted its ruling was limited to a government body’s censure of one of its members. It stated there could be other cases where a mere verbal reprimand or censure could still be actionable under the First Amendment, including government official reprimands of students or employees.