Public Access Opinion 22-013

Evidentiary and Discovery Rules Do Not Exempt from Disclosure Private Attorney’s Letter on Behalf of Clients

Freedom of Information Act - FOIA
Case: Public Access Opinion 22-013
Date: Tuesday, November 22, 2022

On October 26, 2021, Requestor submitted a Freedom of Information Act (FOIA) request on behalf of the Chicago Tribune to the City of Chicago Department of Law (Department) seeking copies of certain emails. On November 9, 2021, the Department provided copies of records but withheld a letter submitted by a private attorney on behalf of clients pursuant to section 7(1)(a) of FOIA. The Department argued that evidentiary rules prohibited disclosure of the letter because it concerned settlement negotiations. On November 11, 2021, Requester submitted a Request for Review to the Public Access Counselor (PAC) contesting the denial.

On July 22, 2022, the PAC issued a non-binding determination that the Department improperly denied the letter and requested that it provide Requestor with a copy. On August 26, 2022, the Department informed the PAC that it would not comply. The PAC subsequently issued this binding opinion on the matter.

The Department’s denial of the request was based on the premise that the letter in question documents privileged settlement negotiations and is prohibited from being disclosed by evidentiary and discovery rules. The PAC noted, however, that the letter does not propose or demand a settlement that would resolve the matter or request that the Department engage in negotiations concerning a possible settlement. Thus, the PAC found that the Department had not demonstrated that the letter reflects settlement negotiations encompassed by evidentiary and discovery rules. 

The PAC further reasoned that even if the letter could be construed to be part of a settlement negotiation, is not exempt under the FOIA exemptions the Department asserted. The PAC explained that Federal Rule of Evidence 408, Federal Rule of Evidence 501, Illinois Rule of Evidence 408, Illinois Rule of Evidence 501, Federal Rule of Civil Procedure 26(b), and Illinois Supreme Court Rule 201(b) are judicial rules governing discovery and the admission of evidence in court proceedings. Restrictions on the discovery of information and the admissibility of evidence in court proceedings are inapplicable to the public’s statutory right to obtain information pursuant to FOIA. Such rules do not provide a basis for denying records under section 7(1)(a).

The Department additionally cited Section 7(1)(f) of FOIA. The PAC noted that, to be exempt under section 7(1)(f), a record must be 1) inter-agency or intra-agency, and 2) pre-decisional and deliberative. The letter that the Department withheld was prepared by a private attorney on behalf of clients with interest independent from the Department’s interests. Because the letter is not an intra-agency or inter-agency communication, or a pre-decisional and deliberative record, it is not exempt from disclosure pursuant to section 7(1)(f) of FOIA.

The PAC ordered the Department to provide Requestor with a copy of the responsive letter.

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

Mary H. Bandstra, IASB Law Clerk