Deliberative Process Exemption to Disclosure of Records under FOIA
The Illinois Appellate Court for the 1st District (Court) considered an appeal from the Circuit Court of Cook County (Circuit Court) and found that the Office of the Illinois Attorney General (OAG) properly withheld records in response to a FOIA request under the deliberative process exemption in Section 7(1)(f).
During the fall of 2012, OAG filed an action against several Cathode Ray Tube manufacturers alleging they had conspired to fix prices on certain products, resulting in overcharges to Illinois consumers. OAG entered settlement agreements with all of the manufacturers between July 2016 and March 2018. Each settlement agreement stated it would not become final until the circuit court entered a final judgment providing that settlement funds be distributed to eligible claimants. The final judgment has not yet been entered. Plaintiff Fisher represents several clients that submitted claims as part of the settlement, but the majority of his clients were informed that they were not eligible for settlement claims.
Plaintiff then submitted a FOIA request to OAG seeking certain records related to the settlement, including communications concerning eligibility between OAG and consultants OAG hired to help administer the claims process. OAG denied Plaintiff’s request for records, citing Section 7(1)(f) which exempts from disclosure “preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated.” OAG asserted the communications that Plaintiff sought were “written for the purpose of planning courses of action with regard to assessing claims” and therefore they were predecisional and exempt under Section 7(1)(f). Plaintiff responded by filing suit in the Circuit Court, alleging the requested records did not fall under Section 7(1)(f). The Circuit Court concluded the records that Plaintiff sought were exempt under Section 7(1)(f) and that OAG had properly withheld them. Plaintiff appealed.
On appeal, the Court noted that FOIA requires full disclosure unless the desired information is exempted under clearly delineated statutory language, and that when a government claims an exemption it must prove the exemption applies by clear and convincing evidence. Looking to Section 7(1)(f), the Court stated that this exemption expresses public policy favoring the confidentiality of predecisional materials in order to protect the communication process and encourage frank and open discussion among agency employees before a final decision is made. Thus, to use Section 7(1)(f), the responsive materials must be both 1) inter or intra agency, and 2) predecisional and deliberative. The Court found that the materials OAG withheld met both of these requirements, and so OAG met its burden of proof.