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.
 

A school district in Milwaukee, Wisconsin, terminated a school counselor following her profanity-laden speech against transgenderism given at a rally at the State Capitol.  Following her termination by the school district, she filed a civils rights lawsuit claiming she was unlawfully fired in retaliation for exercising her First Amendment right to freedom of speech. The district court denied her request for a preliminary injunction and dismissed her First Amendment claim, finding in favor of the school district, specifically that the school district's interests as a public employer outweighed her speech rights under these circumstances. The 7th Circuit upheld the district court’s decision holding that her speech fell outside the scope of the First Amendment's protection as applied in the context of public employment.

The Court analyzed the facts of the case considering when a public employee “speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences… [using a] list of seven factors that may be relevant to Pickering balancing:

(1) whether the speech would create problems in maintaining discipline or harmony among co-workers; (2) whether …the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee's ability to perform her responsibilities; (4) the time, place, and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decision making; and (7) whether the speaker should be regarded as a member of the general public.” 

The 7th Circuit (Court) took note of the fact that she introduced herself to the crowd as a school counselor for the Milwaukee public school district. The Court explained that the role of teacher and school counselor are positions of great public trust and authority. “These positions by their nature require “a degree of public trust not found in many other positions of public employment.” The Court found that the school counselor’s “speech was fundamentally at odds with this foundational duty. It was not a calm, reasoned presentation of her views on this sensitive subject. She made a harsh, angry, and profanity-filled public pledge to carry out her counseling duties in a relentlessly rigid way when it comes to transgender issues. That pledge was hardly compatible with her obligation to build student and parental trust when counseling children with gender dysphoria or who otherwise struggle with gender-identity concerns. Nor is it compatible with her responsibility as a school counselor to promote respect for and humane treatment of these children by other students. Darlingh vowed that “not a single one” of her students would “ever, ever transition” on her watch, punctuating her promise with multiple expletives. In this way she signaled to students and parents an inability to deal with this sensitive subject with equanimity, civility, and respect for different views. Her speech is hard to reconcile with her professional obligation to approach her counseling duties with empathy and good judgment.” The termination letter she received explained that her speech impaired her ability to perform her role as a school counselor, damaged the district's reputation, and undermined its mission to provide an equitable and supportive learning environment for all students. 

The court determined that the Pickering balance tipped in favor of the school district mainly because of “…the speech itself, the sensitive nature of Darlingh's job, and the school district's reasonable assessment that her profanity-ridden remarks expressed a fixed commitment to carry out her duties in a way that conflicted with its mission and policies, to the detriment of the district, students, and parents.” 

A copy of the decision can be found here.
 

In a 6-3 decision, the U.S. Supreme Court upheld the FCC’s E-rate program, which supports internet access for schools and millions of students across the country.  Consumers’ Research, an advocacy group, challenged the constitutionality of the funding mechanism for the E-rate program. The group claimed, in part, that Congress had improperly delegated its taxing power because the FCC uses a private entity, the Universal Service Administrative Co., to recommend contribution rates and collect fees that fund the program. The Court found that the FCC was properly exercising its authority to implement the E-rate law, which directs the FCC to collect contributions that are “sufficient” to support the program. 

In a 6-3 decision, the U.S. Supreme Court (Court) ruled that a school board’s refusal to allow parents to opt their children out of classroom instruction involving “LGBTQ+ inclusive” storybooks violated the parents’ right to free exercise of religion under the First Amendment of the U.S. Constitution.

During the 2022-2023 school year, the Montgomery Board of Education (Board) in Maryland approved certain storybooks featuring LGBTQ+ characters and themes for use in the K-12 curriculum, in an effort to better represent the diversity of students and families in the district. The Board expected that teachers would incorporate the books as part of literacy instruction in the classroom.  Initially, the Board notified parents and allowed them to opt their children out of instruction involving the storybooks if they objected to it. However, for the 2023-2024 school year, the Board reversed its decision and prohibited parents from opting their children out of the instruction. The Board determined the volume of opt-out requests from parents had become unmanageable and disruptive to the classroom environment.  The Board was also concerned that permitting some students to leave the classroom while the storybooks were being used would cause other students to experience social stigma and isolation. Parents of elementary school students subsequently filed a lawsuit against the Board, claiming that they should be able to opt their children out of the instruction because their exposure to the books was an unconstitutional burden on the parents’ free exercise of religion, specifically their right to direct the religious upbringing of their children.

The Court examined the storybooks at issue and found they conveyed “normative” messages to young children about sex and gender that were hostile to their parents’ religious beliefs. The Court also noted that discussion guides provided to the teachers encouraged them to reinforce the books’ viewpoints and “reprimand” children who disagreed. Relying on a past decision in which the Court ruled a state could not compel Amish parents to send their children to high school (Wisconsin v. Yoder, 406 U.S. 205 (1972)), the Court held that the use of the storybooks in the curriculum, combined with the Board’s refusal to allow parents to opt out, was an unconstitutional burden on the parents’ free exercise of religion.  Therefore, the parents were entitled to notice and the opportunity to opt-out of instruction involving the books.

In its dissent, the Court’s liberal minority stated that students’ mere exposure to the storybooks in class did not give rise to a free exercise claim.  The minority warned that requiring schools to provide advance notice and the opportunity to opt out of every material that could conflict with parents’ religious beliefs will “impose impossible administrative burdens on schools” and will have “serious chilling effects on public school curricula.” The minority argued that the majority’s holding could mean that schools would need to provide notice and opt-out to parents who have religious objections to books expressing implicit support for women’s rights, interfaith marriage, consumption of meat, and other topics.

Following this decision, districts will need to carefully weigh the risks of introducing or maintaining the use of instructional materials that conflict with parents’ religious beliefs without giving parents the opportunity to opt out of the instruction.      Specific concerns and objections to material used in a school’s curriculum should be reviewed on a case-by-case basis in accordance with school board policy and in consultation with the board attorney.    

A member of the public submitted a request for review to the Illinois Attorney General's Public Access Counselor's office (PAC) alleging that a City of Peru (City) pool committee (Committee) violated the Open Meetings Act (OMA) by holding meetings closed to the public regarding building a new pool in the City. The PAC analyzed the issue presented using a four-factor test established by the Illinois Supreme Court to determine whether the Committee would constitute a “subsidiary body” subject to OMA requirements.

Section 1 of OMA states that "it is the intent of this Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly." Section 1.02 of the OMA defines "public body" as including "all legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but limited to committees and subcommittees[.]" Generally, the OMA applies to a majority of a quorum of school board members when discussing public business contemporaneously, commonly three or more school board members. In analyzing whether an entity constitutes an advisory body of a public body, Illinois courts have examined: (1) who appoints the members of the entity, (2) the formality of their appointment, (3) whether the members are paid for their tenure, (4) the entity's assigned duties, including duties reflected in its bylaws or authorizing statute, (5) whether the entity's role is solely advisory or whether it also has a deliberative or investigative function, (6) whether the entity is subject to government control or otherwise accountable to any public body, (7) whether the entity has a budget, (8) the entity's place within the larger public body, and (9) the impact of decisions or recommendations that the entity makes. University Professionals of Illinois v. Stukel, 344 Ill. App. 3d 856, 865 (2003). Courts have considered four primary factors in determining whether an entity is a "subsidiary body" of a public body: (1) the extent to which the entity has a legal existence independent of government resolution, (2) the degree of government control exerted over the entity, (3) the extent to which the entity is publicly funded, and (4) the nature of the functions performed by the entity." Better Government Ass'n v. Illinois High School Ass'n, 2017 IL 121124, ¶ 26.

First, the PAC found that the City created the Committee as part of the City’s planning process to construct a new pool in the City. The City claimed the Committee was an informal advisory committee doing preliminary background work for the City to consider. The PAC stated that even if the City labels the Committee or its gatherings as “informal” that does not shield the gatherings or discussions about public business from OMA requirements. The PAC determined that the Committee would not legally exist independently of the City.

Second, the PAC found that the Mayor appointed the members of the Committee, the Committee’s recommendations were all subject to City Council review and approval, and the City had been directly involved in and controlled most of the Committee activities relating to building a pool in the City, including providing assistance related to finance, engineering and zoning, and parks and recreations matters. The PAC determined that the City exerts a significant amount of government control over the Committee.

Third, the PAC found that even though the City claimed that the members of the committee are volunteering, the Committee received at least some indirect public funding by virtue of being part of the City, and salaried City officials and employees devoted their time to supporting the Committee’s activities. For example, the Mayor appointed to the Committee two members of the City Council as well as the City's Director of Parks, Recreation and Special Events.

Finally, the PAC found that the Committee was tasked with assessing the potential designs, costs, and locations for a new City pool, and reporting its findings to the City, which are roles typically performed by a municipal committee. The PAC determined that the City utilized the Committee to perform governmental functions.

The PAC concluded that the Committee is a subsidiary body of the City subject to the requirements of OMA.

A copy of the decision can be found here.