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Portions of Mayor’s Resignation E-mail Were Improperly Withheld Under Exemptions for Preliminary Drafts and Public Body’s Adjudication of Employee Grievances and Disciplinary Cases
Public Access Opinion 18-001
The PAC found that the Village of Hudson (Village) violated FOIA when it improperly redacted portions of its mayor’s resignation e-mail in responding to a FOIA request submitted on October 4, 2017. The Village attempted to argue that the redacted material was exempt under Section 7(1)(f), which, in relevant part, exempts from disclosure records “in which opinions are express, or policies or actions are formulate.” The Village claimed the redacted text was a record in which an opinion was expressed that was not the final policy of the Village. The Village also claimed that the portions of the e-mail were exempt under Section 7(1)(n) because the material related to the Village’s adjudication of an employee grievance or disciplinary case.

After reviewing an unredacted copy of the resignation letter, the PAC found that the Village’s assertions were without merit. Regarding Section 7(1)(f), the PAC noted that while the redacted text may have reflected the mayor’s opinion about the circumstances leading to his resignation, the opinion expressed was not part of the “give-and-take of the deliberative process;” rather, the mayor’s decision was a single communication, and his decision to resign had already been made. The PAC also found that Section 7(1)(n) did not apply because the Village failed to identify a grievance, complaint, or disciplinary action that was adjudicated, nor was the e-mail generated during a formal proceeding that could be considered an “adjudication.” The PAC ordered the Village to provide an unredacted copy of the former mayor’s email to the FOIA requester.

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

Failure to Respond to a FOIA Request
Public Access Opinion 17-015
The Office of the Governor violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request. On September 14, 2017, an individual submitted a request for a log of FOIA requests received by the Governor since July 1, 2017. The requestor received no response and subsequently requested the PAC review the Governor’s failure to respond. The PAC found that the Governor violated Section 3(d) of FOIA by failing to provide the requested records or to respond in writing to the 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.

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

Failure to Meet the “Purpose and Intent” of FOIA Is Not a Basis for Denial of a FOIA Request
Public Access Opinion 17-014
McClean County (County) violated FOIA by denying a request made on September 6, 2017, for copies of recent FOIA requests submitted to the County and its responses to those requests. The County denied the FOIA request on the basis that it “did not meet the purpose and intent of [FOIA].” It believed that the requester was improperly trying to obtain information about private individuals rather than information concerning government. The County, however, did not assert any specific statutory exemptions under FOIA in its denial. The PAC found that the County’s denial of the request was improper because under Section 3(c) of FOIA, public bodies may not “require the requester to specify the purpose for a request, except to determine whether the records are requested for a commercial purpose or whether to grant a request for a fee waiver.” FOIA does not allow a public body to deny a FOIA request based on what it believes to be the underlying motive of the request. The PAC ordered the County to provide records responsive to the FOIA request, subject only to redactions permitted under Section 7 of FOIA.

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

Pregnancy Discrimination and the Illinois Nursing Mothers in the Workplace Act
Sarah Spriesch v. City of Chicago, 2017 WL 4864913 (N.D.Ill. 2017)
Sarah Spriesch worked as a fire department paramedic for the City of Chicago. In the summer of 2014, she informed her supervisor that she was pregnant, and she was immediately forced to go on leave for the rest of her pregnancy. She returned to work two months after giving birth and requested accommodations so that she could pump and express breastmilk at work. The City did not consistently allow Ms. Spriesch to take breaks to pump, nor did it provide her with regular access to a private, non-bathroom space in which she could pump and express breastmilk. Upon returning from leave, Ms. Spriesch was assigned to a paramedic “relief pool,” which meant she received temporary assignments at a number of firehouses, some of which did not have private, non-bathroom areas. Ms. Spriesch brought several claims against the City, including pregnancy discrimination under Title VII, a pregnancy/childbirth accommodation claim under the Illinois Human Rights Act (IHRA), and breastfeeding accommodation claims under the federal Fair Labor Standards act and the Illinois Nursing Mothers in the Workplace Act (INMWA).

The City filed a motion to dismiss Ms. Spriesch’s claims. Most significantly, with regard to her INMWA claim, the court recognized that the law implies a private right of action, even though it does not expressly provide for one, so the City could potentially be liable to Ms. Spriesch for its failure to accommodate her as a nursing mother under the INMWA. The City also claimed that Ms. Spriesch’s Title VII pregnancy discrimination claim was time-barred because she filed her EEOC charge well over a year after she was placed on leave for her pregnancy; however, the court found her claim could be timely under a “continuing violation” theory, since other acts of discrimination were alleged to have occurred after that time. The court also allowed Ms. Spriesch to proceed on her IHRA discrimination claim for acts that occurred after date the IHRA was amended (January 1, 2015) to require employers to provide reasonable accommodations for medical and other common conditions related to pregnancy or childbirth.

This case emphasizes how important it is for school districts, as employers, to provide reasonable accommodations for pregnant and nursing employees. Otherwise, a district may face liability under a number of federal and state laws. The footnotes in the sample PRESS Policy 5:10, Equal Opportunity and Minority Recruitment, as well PRESS administrative procedure 5:10-AP, Workplace Accommodations for Working Mothers, provide further information about the legal requirements for such accommodations.

Copyright and Works for Hire
Shanton v. St. Charles Community Unit School District, 2017 WL 4865536 (N.D.Ill. 2017)
In 2005, Audrey Shanton, a computer lab assistant at St. Charles Community Unit School District 303, and her husband, developed a basic computer program that could track certain student information, such as student attendance, based on reading barcodes. The original program was created outside of work and without the District’s knowledge. In 2008, the District became aware of the program and asked Ms. Shanton if she would regularly update the program for use in the District. Ms. Shanton agreed to do so, albeit informally, and she rewrote and updated the program every year for the District through 2015. In 2015, the District informed her that it no longer wanted an updated program because it was going to use a new commercial program. Ms. Shanton, upon viewing the commercial program, believed it was a reversed engineered version of the derivative program she created in 2008. She sued the District for copyright infringement, claiming she owned the derivatives of the original 2005 program.

The District sought to have Ms. Shanton’s infringement claim dismissed on the basis that the derivative works of her original 2005 program were “works for hire” and belonged to the District. The court considered a number of factors to determine if the works belonged to Ms. Shanton or the District: (1) the hiring party’s right to control the manner and means by which the product is accomplished; (2) the skill required to create the material; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; and (6) the provision of employee benefits. The court sided with the District and dismissed the infringement claim, finding that although Ms. Shanton maintained close control over the program updates after 2008 and could have rewritten the program off school grounds, it was clear that she was acting as an agent of the District because the program updates were made at the District’s request and on District property, and she received no additional pay for the updates.

This case illustrates that works made within the scope of one’s employment belong to the employer, and it appears to be the first case in Illinois to specifically address the work for hire doctrine in the K-12 context. Whether a particular work qualifies as a work for hire is entirely dependent on the particular facts of a situation. Sample PRESS Policy 5:170, Copyright, generally addresses works made for hire and directs the superintendent to manage the development of instructional materials and computer programs authored by employees in the scope of their employment.

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