Recent Court Decisions

A County Housing Authority (Housing Authority) violated FOIA by improperly denying the release of recordings of public board meetings in response to a reporter’s FOIA request. On August 23, 2017, a reporter requested, among other items, copies of “all audio recordings taken during Board of Commissioner meetings in 2017.” The Housing Authority denied the request for audio recordings, stating they were preliminary materials exempt from disclosure under FOIA Section 7(1)(f).

The Section 7(1)(f) exemption applies to “preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.” Importantly, Section 7(1)(f) is intended to protect the communication process and encourage frank and open discussion before a final decision is made, so only portions that reflect the give and take of the deliberative process may be withheld.

On review, the PAC found that Section 7(1)(f) does not apply to recordings of public meetings because information that is already public knowledge is not within the scope of the deliberative process exemption. Although the verbatim recordings may reflect preliminary discussions of matters pending before the public body, by virtue of the meetings being open to the public their recordings are subject to disclosure. The PAC ordered the Housing Authority to immediately disclose the recordings to the reporter.

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

A Board of Trustees of a village (Board) violated OMA by improperly using Section 2(c)(4) to enter closed session to discuss the conduct of one of its Board members.

Here, the Board member whose conduct was at issue had made racist comments during a May 2017 Board meeting. In response, the agenda for the Board’s August 8, 2017 meeting identified a resolution concerning the Board member’s comments as an item for discussion, however the Board entered closed session for the discussion and cited Section 2(c)(4) of OMA to do so. Section 2(c)(4) allows a public body to enter closed session to discuss “evidence or testimony presented in open hearing, or in a closed hearing where specifically authorized by law, to a quasi-adjudicative body.” Under OMA, a “quasi-adjudicative body” is “an administrative body charged by law or ordinance with the responsibility to conduct hearings, receive evidence or testimony and make determinations based thereon, but does not include local electoral boards when such bodies are considering petition challenges.”

Upon reviewing the closed session verbatim recording of the August meeting, the PAC found that the Board did not consider evidence or testimony – they just discussed a resolution regarding the Board member’s comments. Even if the Board had considered evidence or testimony, they would have done so as a legislative body, so Section 2(c)(4) could not apply.

Because the Board improperly entered closed session to discuss the conduct of one of its members, the PAC ordered the Board to publicly disclose the portion of the closed session verbatim recording containing this discussion.

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

A County Sheriff’s Office (Sheriff’s Office) violated FOIA by improperly denying the release of two 9-1-1 recordings in response to two FOIA requests. On April 27, 2017, a reporter requested copies of two 9-1-1 recordings made from the home of a child who had been reported missing and was later found dead. The Sheriff’s Office promptly denied both requests in their entireties, asserting that the voice recordings constituted “biometric identifiers,” which are included in Section 2(c-5)’s definition of “private information” exempt from disclosure. The Sheriff’s Office also denied disclosure of the second 9-1-1 recording based on Section 7(1)(d)(vii), asserting that disclosure could impede the ongoing investigation of the child’s death.

On review, the PAC found that the voice recordings did not constitute “biometric identifiers” because that term is commonly understood to refer to the measurement and analysis of a unique physical or behavioral characteristic that identifies a person. Since the voice recordings did not contain a measurement or analysis of the speaker’s voice (or a “voiceprint”), they were not “biometric identifiers” and thus their disclosure could not be denied under Section 2(c-5).

Regarding the Sheriff’s Office’s Section 7(1)(d)(vii) assertion, the PAC found that the existence of a criminal investigation by itself does not render records relating to the investigation exempt from disclosure. To successfully make this assertion, the Sheriff’s Office would have had to provide a factual basis and “clear and convincing evidence” demonstrating how the disclosure of the 9-1-1 recording would obstruct an ongoing criminal investigation.

The PAC ordered the Sheriff’s Office to immediately disclose the 9-1-1 recordings to the reporter.

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

The City of Rockford (City) violated FOIA by improperly redacting employees’ names from certified payroll records when disclosing them in response to a FOIA request. On May 22, 2017, an individual submitted a request for copies of certified payroll records for a specific City project by a specific City contractor. The City promptly responded by stating the FOIA request was approved in its entirety and by providing copies of the certified payroll records, but the City redacted the contractor’s employees’ names, addresses, social security numbers, and driver’s license numbers from the records. Driver’s license numbers are exempt as “private information” under Section 7(1)(b) of FOIA, and Section 2.10 of FOIA permits a public body to redact contractor’s employees’ addresses, telephone numbers, and social security numbers from certified payroll records submitted to a public body under the Prevailing Wage Act. However, the City erred when it redacted the employees’ names, which are not exempt from disclosure. Moreover, the City had stated the FOIA request was approved in its entirety and it did not accurately state that it had partially denied the FOIA request (by making redactions) nor explain why redactions were made. The PAC ordered the City to immediately disclose the contractor’s employees’ names contained within the requested certified payroll records.

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

A public body violated Section 2(a) of the Open Meetings Act when it improperly relied on Section 2(c)(11) to discuss in closed session matters related to an intergovernmental agreement at its February 20, 2017 meeting. Section 2(a) requires all meetings of public bodies to be open to the public unless the subject of the meeting is covered by one of the limited exceptions under 2(c). Section 2(c)(11) permits public bodies to close a portion of the meeting to discuss “[l]itigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.” If there is no litigation pending, the public body must have reasonable grounds to believe that litigation is more likely than not to be instituted or is close at hand.

The PAC found that during the closed session, the public body did not focus on litigation, but rather focused on its course of action with respect to the intergovernmental agreement, which is outside the scope of the exception. The PAC ordered the public body to make publicly available the closed session verbatim recording of the meeting and take necessary action as soon as practical to comply with the directives of the opinion or initiate administrative review under Section 7.5 of OMA.

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

Cassandra Black, IASB Law Clerk