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Public Access Opinion 17-003

Financial Terms of Contracts, Billing Invoices, and Budget Documents Related to a Public Body’s Use of Public Funds Are Not Exempt under Section 7(1)(g)

Administrator Contracts
Case: Public Access Opinion 17-003
Date: Friday, May 26, 2017

A public body violated FOIA by improperly redacting financial terms of contracts, billing invoices pursuant to those contracts, and financial terms from annual budgets, as well as improperly withholding its budget ordinances in their entireties. The City Clerk of the City of Taylorville submitted a FOIA request to Taylorville Sanitary District (TSD) for copies of all contracts between the District and Veolia Water North America—Central, LLC (Veolia) since 2010, as well as copies of any invoices from Viola during this time frame, and copies of the yearly budgets prepared and approved by TSD for the same time period. TSD furnished copies of 1,470 pages of records to the requestor but redacted most of the substantive financial information in the records and but did not include a partial denial letter identifying the reasons for the redactions. The requestor filed a Request for Review with PAC, complaining that TSD improperly redacted most of the information contained in the records. In response to an inquiry from PAC, TSD stated that the reason for redacting or withholding information was because the information was exempt from disclosure under Section 7(1)(g), because its agreement with Veolia “contains a confidentiality clause and that trade secrets, commercial and financial information was and continues to be exchanged pursuant to the agreement, including the confidentiality provisions, and that is the basis of the claim the information is proprietary, privileged and confidential.”

The PAC found that TSD violated Section 9(a) of FOIA by not providing the requestor with a partial denial letter stating the factual basis for its redaction or withholding of records. The PAC also found that TSD violated Section 7(1)(g) because though TSD claimed the information in dispute is confidential under a confidentiality clause in the agreement with Veolia, the agreement expressly requires confidential information to be clearly designated in writing as confidential, and none of the information at issue was so marked. Additionally, the confidentiality provision of the contract clearly states that it does not apply to information that is “required to be disclosed by operation of law.” Under Article VIII, Section 1(c) of the Illinois Constitution of 1970, “[r]eports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.” Additionally, Section 2.5 of FOIA states that “[a]ll records relating to the obligation, receipt, and use of public funds of the State, units of local government, and school districts are public records subject to inspection and copying by the public.” The records at issue directly relate to the District’s use of public funds and are, therefore, required to by disclosed, making the confidentiality provision on which TSD based its assertion of Section 7(1)(g) expressly inapplicable. The PAC ordered TSD to take immediate and appropriate action by disclosing to the requestor unredacted copies of the records, as well as unredacted copies of the budget ordinances that were not originally provided.

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

Cassandra Black, IASB Law Clerk