Public Access Opinion 21-004

Correspondence with Third Party is Not Part of Public Body’s Deliberative Process

Freedom of Information Act - FOIA
Case: Public Access Opinion 21-004
Date: Monday, May 24, 2021

The City of Geneva (City) violated FOIA by denying a request for copies of its correspondence with a third party by alleging such correspondence was exempt from disclosure under Section 7(1)(f) as part of the City’s deliberative process.
Requestor submitted a FOIA request to the City seeking copies of “all communications between the City of Geneva and applicant Malone Funeral Home that have taken place after the date of public notice of a hearing for a zoning change at Malones Funeral Home.” The City denied this request under Section 7(1)(f) of FOIA, and Requestor asked the PAC to review the matter.
On review, the PAC asked the City to explain the factual and legal bases for applying Section 7(1)(f) of FOIA to the withheld records. Section 7(1)(f) exempts from disclosure “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.” The City explained that the requested records consisted of comments from the City and its consultants about applications submitted by Malone Funeral Home seeking zoning variations, and it asserted these comments were exempt under Section 7(1)(f) because they were deliberative as they: 1) were intended to allow City officials to freely express ideas to the applicant regarding application deficiencies, City requirements, and/or recommendations; and 2) allowed the applicant an opportunity to revise its application. The PAC noted several court cases emphasizing that Section 7(1)(f) is limited to internal documents and records exchanged with third parties that represent the public body or otherwise do not have any independent interests in the subject of the communications. The correspondence at issue here, however, was not internal nor was it solely among consultants representing the City’s interests. To the contrary – the correspondence was with a third party that had interests independent from the City and stood to benefit from the City’s final zoning application decision. As a result, the correspondence did not fall under the Section 7(1)(f) exemption. The PAC determined the City improperly used Section 7(1)(f) to withhold the requested records and directed the City to immediately provide Requestor with the correspondence.
This opinion is binding only to the parties involved and may be appealed pursuant to State law.