Request for Record from School District’s Former Law Firm
This binding opinion from the Illinois Attorney General’s Public Access Counselor (PAC) discusses an issue under the Freedom of Information Act (FOIA) of whether the Hinsdale Township High School District 86 (District) improperly withheld a record responsive to a FOIA request seeking an attachment from the District’s former law firm to an e-mail sent from the president of the District's Board of Education (Board) to the rest of the Board's members. The FOIA request included a copy of the email chain underlying the FOIA request. The e-mail chain showed an e-mail with the attachment at issue from the District's former legal counsel and copying other Board members, the District Superintendent, and two attorneys for the District's new law firm. The attachment at issue in this matter relates to a billing dispute with the former law firm.
It is the public policy of the State of Illinois that "all persons are entitled to full and complete information regarding the affairs of government." 5 ILCS 140/1. Under FOIA, "(a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS 140/1.2.
Section 7(1)(m) of FOIA exempts from disclosure: “Communications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies. A party asserting that a communication to an attorney is protected by the attorney-client privilege must show that: (1) a statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential." Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2006). A public body that withholds records under section 7(1)(m) "can meet its burden only by providing some objective indicia that the exemption is applicable under the circumstances." Illinois Education Ass'n v. Illinois State Board of Education, 204 Ill. 2d 456, 470 (2003).
Section 7(1)(a) of FOIA exempts from disclosure "[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law." Under this provision, "an exemption restricting the expansive nature of the FOIA's disclosure provisions must be explicitly stated--that is, such a proposed disclosure must be specifically prohibited." (Emphasis in original.) Better Government Ass'n v. Blagojevich, 386 Ill. App. 3d 808, 816 (2008).
Section 7(1)(f) of FOIA exempts from inspection and copying "[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 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."
Here, the PAC reviewed the record at issue and determined that it was not exempt from disclosure pursuant to Section 7(1)(m) because the contested record did not contain any information regarding the nature of services performed, the District's motive for seeking legal representation, or litigation strategy. Portions of three Illinois Supreme Court Rules of Professional Conduct were presented by the District as prohibiting the District from disclosing the record at issue, specifically under Rule 1.6. The District also cited sections l.4 and 1.9 arguing that those provisions require "attorneys to keep their clients informed while ensuring the protection of privileged communications." The PAC found that Rule 1.6 contained no exception for public bodies responding to FOIA requests as well as finding that Rules 1.4, 1.6 and 1.9 do not place a limitation on the disclosure of information by a lawyer's client, including a public body that has received a FOIA request. The PAC found that the record did not reflect a deliberation with a third party acting on the District's behalf, instead the former law firm was acting with independent interests, and therefore the record did not fall within the scope of Section 7(1)(t) as an inter- or intra-agency deliberative record. The PAC determined that the District improperly withheld the contested record and directed the District to provide the record to the requester.
A copy of the decision can be found here.