Recent Court Decisions

A public body violated FOIA by improperly denying a request under Section 7(1)(d)(i). The requestor requested an Illinois State Police (ISP) field report. ISP responded by denying the request in its entirety under 7(1)(d)(i) of FOIA, claiming that disclosure of the requested information “would interfere with pending or actually and reasonably contemplated law enforcement proceeding[s] conducted by [a] law enforcement agency.” When a public body denies a request claiming statutory exemption, the burden is on the governmental agency to prove that specific documents fit within the statutory exemption.

The PAC found that while ISP’s response to the FOIA included the statutory language of Section 7(1)(d)(i), it did not provide a “detailed factual basis” for its application as is required by Section 9(a). The PAC concluded that ISP did not sustain its burden of demonstrating by clear and convincing evidence that the field report is exempt from disclosure in its entirety.

The PAC ordered ISP to immediately disclose the field report to the requestor. In response to ISP’s claim that the report contains information that is exempt, the PAC stated ISP may redact from the report any “private information” which is exempt under 7(1)(b) and dates of birth which are exempt under Section 7(1)(c), but if ISP redacts any information, it must include a written denial that identifies the basis for each redaction and other requirements of Section 9(a).

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

Cassandra Black, IASB Law Clerk

A school board met in closed session to discuss the possibility of entering into a separation agreement with the then-Superintendent. The Superintendent signed and dated the agreement during the closed meeting. During a subsequent closed meeting, six of seven board members signed but did not date the agreement. Next, the Board posted the agenda for a subsequent open meeting on its website, listing an item to approve the resolution and separation agreement between the Superintendent and Board. The agenda identified the Superintendent by name and contained a link to the full text of the separation agreement. At the open meeting, the Board read the agenda item and full text of the resolution, conducted a roll call vote, and approved the resolution and agreement. The Attorney General found the Board violated OMA, stating that by signing the agreement in closed session the Board took final action, and the Board did not adequately inform the public of the nature of the matter under consideration. The circuit court reversed this decision and the appellate court affirmed.

The Attorney General then appealed to the Illinois Supreme Court, which agreed with the lower courts and found in favor of the Board. The Court held that under Section 2(e) of OMA, a public recital must take place at the open meeting before the matter is voted upon, and the recital must announce the nature of the matter being considered. Adequate detail to identify the particular issue is required, but this does not require an explanation of its terms or significance. The Court also held that here, reading the agenda item and full text of the resolution before taking a roll call vote satisfied OMA. The Court further clarified that final action does not, as the Attorney General claimed, require a board to provide a detailed explanation about the significance or impact of the proposed final action.

The decision means that during a validly conducted closed session, board members may continue to express their individual positions without fear they are taking impermissible final action. Activities in closed session like taking a straw poll or signing a document are permissible provided the board later takes final action in a properly conducted open session.

Cassandra Black, IASB Law Clerk

Defendant The Kernel Press (The Kernel), the student-run newspaper of Plaintiff University of Kentucky (UK), requested from UK copies of all records detailing a professor’s resignation within the context of a sexual assault complaint filed by two students. UK refused to disclose records containing personally identifiable student information under the Family Educational Rights and Privacy Act (FERPA), reasoning that disclosure would be an invasion of the students’ personal privacy. The Kernel appealed to the Kentucky Attorney General, who ordered UK to disclose the records with student identifiers redacted. UK appealed to Kentucky circuit court.

The Court found that while FERPA generally permits disclosure of employment records directly related to an employee in their employment capacity, these records also directly related to the students, making them educational records protected by FERPA. As such, the Court found them exempt from disclosure under the Kentucky Open Records Act. The Court also held that the records could not be disclosed in redacted form because redaction would not offer adequate protection, as details in the records would make it easy for one to identify the students with reasonable certainty.

Although not binding in Illinois, this case reminds public bodies that investigative documents regarding an employee may also be educational records under FERPA if the records also directly relate to a student. Additionally, educational records that cannot reasonably be redacted to support a student’s privacy rights do not need to be released.

Cassandra Black, IASB Law Clerk

For the sixth time this calendar year, the PAC has told public bodies they must respond to FOIA requests. An individual submitted a FOIA request via email to the Housing Authority of Cook County for all correspondence between the Authority and the Buckeye Community Hope Foundation from March 1, 2015 to July 25, 2016. Eleven business days later, the Authority emailed the FOIA requestor, stating it had questions regarding the FOIA request. The Authority eventually obtained written clarification from the FOIA requester regarding the records sought, however the Authority never actually responded to the FOIA request. The Authority also failed to respond to the PAC’s inquiries. The PAC found the Authority violated Section 3(d) of FOIA by failing, within five business days after receiving the FOIA request, to provide the requested records, deny the request in whole or in part, or to notify the FOIA requestor in writing that it was extending the time for a issuing a response. The PAC ordered the Authority 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.

For the second time two calendar years, the PAC has told public bodies that the amount of compensation paid by the public body is subject to disclosure unless it is otherwise exempted.

An individual submitted a FOIA request to the Housing Authority of the City of Freeport for the names and titles of staff members receiving bonuses, as well as the amount of the bonuses. The Authority denied the request in its entirety, asserting that the requested records were exempted under: FOIA Section 7(1)(b) as a “unique identifier” that could be considered personal financial information; FOIA Section 7(1)(c) as personal information that could constitute an “unwarranted invasion of personal privacy”; and the Personnel Record Review Act (820 ILCS 40/). Unpersuaded by these attempts at claiming exemptions, the PAC held that the requested records were subject to disclosure under FOIA Section 2.5 because employee compensation relates to the use of public funds. The PAC ordered the Authority to immediately provide the FOIA requester with records sufficient to show the bonuses paid.

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