In 2015, tenured teacher Timothy Burgess (Burgess) was dismissed from his teaching position by the Board of Education of Ottawa Township High School District No. 140 (Board). Burgess appealed the Board’s decision and a tenured teacher dismissal hearing was held pursuant to Article 24 of the School Code. Following a three-day hearing, Ill. State Board of Education hearing officer Danielle Carne (Carne) found that Burgess’s conduct did not violate the prohibitions and mandates he had previously been issued via a Notice to Remedy in 2009. As a result, Carne recommended that the Board reverse its dismissal of Burgess. The Board believed Carne’s findings and conclusions were flawed, so it rejected her recommendation and upheld its dismissal of Burgess.
 
Burgess filed a complaint for administrative review in the circuit court. Upon review, the circuit court found that while the Board was wrong to find that Carne’s findings were erroneous, Burgess’s conduct was not remediable. Accordingly, the circuit court affirmed the Board’s dismissal of Burgess.
 
Burgess then appealed to the Third District Appellate Court (Court). The Court employed a two-part process to review the dismissal. First, it reviewed the Board’s supplemental factual findings, as well as Carne’s factual findings that were incorporated, unmodified, into the Board’s decision, to determine whether those findings were against the manifest weight of the evidence. Second, it applied the clearly erroneous standard of review to determine whether the Board’s findings of fact provided a sufficient basis for its conclusion regarding whether Burgess should be dismissed or retained.
 
Reviewing the evidence, the Court found that the Board’s supplemental factual findings were against the manifest weight of the evidence, in part because the Board “went to great lengths” to discredit witnesses that favored Burgess while disregarding discrepancies that weighed against the credibility of the administration’s witnesses. The Court further found that the Board’s decision to dismiss Burgess was clearly erroneous. In doing so, it noted that the 2009 Notice to Remedy concerned displays of anger by Burgess in front of staff, parents, students, Board members, and the public – thus it related to Burgess’s fitness as a teacher and the school’s interests in maintaining discipline and operating effectively. In contrast, the conduct that allegedly violated the Notice to Remedy (and which formed the basis for the 2015 dismissal) occurred in private contexts at closed-door union meetings. Though the Court did not condone Burgess’s conduct at those meetings, it held that “no logical nexus exists between this conduct and Burgess’s fitness to perform as a teacher.” Accordingly, the Board’s dismissal decision was arbitrary, unreasonable, and clearly erroneous. The Court reversed the Board’s dismissal of Burgess and remanded the case to circuit court for further proceedings consistent with its decision.
 

The City of Bunker Hill (City) violated FOIA by deleting, and thus failing to provide, a requested record in response to a FOIA request. On September 12, 2019, the Requestor requested the audio recorded minutes from the City’s Committee of the Whole meeting on September 11, 2019. On September 19, 2019, the City returned the FOIA request form the Requestor had completed with a handwritten note in the margin stating that the City’s attorney had stated on September 18, 2019 that the September 11, 2019 meeting was not an actually meeting because there was no quorum present and so there was no need to fulfill the FOIA request. The next day, the Requestor submitted the matter to the PAC for review.

When the PAC phoned the City on October 4, 2019, it was informed that the audio recording was deleted after the City received Requestor’s FOIA request. Further investigation revealed that upon the City attorney’s advice, the City deleted the audio recording after the attorney had advised that the September 11, 2019 meeting was not an actual meeting.

The PAC first determined that the audio recording was a “public record” under FOIA Section 2(c), which defines public records to include all records – including recordings – in the possession of a public body which pertain to the transaction of public business. The PAC next determined that the City possessed the audio recording when it received the FOIA Request, and no provision of FOIA authorizes a public body to destroy responsive records after receiving a FOIA request. Thus, the City should have either provided the audio recording to the Requestor or issued a proper denial in accordance with Section 9(a) of FOIA. As a result, the PAC ordered the City to determine whether it could retrieve the deleted recording and, if so, provide the Request with a copy. It further ordered the City to create protocols to ensure that, in the future, it appropriately complies with FOIA requests and that it preserve responsive records after receiving a FOIA request for them.

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

In August 2015, journalist Bruce Rushton (Rushton) filed a FOIA request with the Illinois Department of Corrections (DOC) seeking all settlement agreements connected with the death of an inmate, including any agreements involving private entities charged with providing health care to the inmate, such as Wexford Health Services (Wexford). DOC did not have a copy of the settlement agreement and requested it from Wexford. Wexford begrudgingly turned over a redacted copy of the settlement agreement but refused to turn over an unredacted copy. DOC then provided Rushton with the redacted copy. Rushton then filed suit in the Sangamon County Circuit Court (Circuit Court) against DOC for violating FOIA, and Wexford intervened. At issue was whether Section 7(2) of FOIA applied to the settlement agreement. Section 7(2) provides that:
 
A public record that is not in the possession of a public body bus is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body.
 
Wexford argued the settlement agreement did not “directly relate” to the governmental function it performed for DOC because it “simply memorializes its independent business decision to settle a legal claim.” Rushton argued the opposite, reasoning that the settlement related to a claim that Wexford failed to properly perform its governmental function (providing medical care to prisoners). The Circuit Court agreed with Wexford, Rushton appealed, and the appellate court reversed.
 
Wexford then appealed to the Illinois Supreme Court (Supreme Court), where it again argued that the settlement agreement did not “directly relate” to its governmental function and also argued that the settlement agreement was not a “public record” under Section 2.20 of FOIA. Section 2.20 states:
 
All settlement agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public, provided that information exempt from disclosure under Section 7 of this Act may be redacted.
 
Wexford asserted that because Section 2.20 does not mention private contractors, it did not apply to them. Looking to the intent of FOIA, the Supreme Court found that public records are presumed to be open and accessible, meaning that FOIA is to be accorded liberal construction and its exemptions are to be construed narrowly. It further stated that Section 2.20 could not be read in isolation from Section 7(2), and held that the legislature intended settlement agreements to be public records. The Supreme Court was also not swayed by Wexford’s argument that the settlement agreement did not “directly relate” to its governmental function, holding instead that the connection was both “direct and obvious.” The Supreme Court ruled the settlement agreement was disclosable, and remanded the matter to the Circuit Court to review whether any portions of the settlement agreement should be redacted as exempt under various other provisions of FOIA. This case serves as a reminder to public bodies that settlement agreements are broadly construed to be disclosable under FOIA, regardless of whether the agreement was entered with a private contractor so long as the contractor was performing a governmental function.

The Newton City Council (City) violated OMA by approving an ordinance without providing sufficient advance notice of that final action on the meeting agenda.

On its August 20, 2019 meeting agenda, the City listed the following as Agenda item 8.d.: “[c]onsider and act on Ordinance 19-11 to Amend Section 33-4-4(F).” The agenda did not specify what Ordinance 19-11 concerned and this omission was submitted to the PAC for review.

Section 2.02(c) of OMA states that, “[a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.” The PAC noted that while the term “general subject matter” is ambiguous, legislative debate on Section 2.02(c) indicates the General Assembly intended that agendas provide sufficient detail to notify members of the public of the types of final actions public bodies anticipate taking at their meetings. Because Agenda item 8.d. only provided an ordinance number and did not identify the general subject matter at issue – application fees for permits - or incorporate the relevant City Code provision by reference or hyperlink, the City violated Section 2.02(c). As a result, the PAC ordered the City to reconsider its August 20, 2019 final action on the fee ordinance at a properly noticed meeting with an agenda containing the general subject matter of that ordinance.

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

The Cook County Assessor’s Office (Assessor) violated Section 3(d) of FOIA by failing to respond to a FOIA request.

Requestor emailed a FOIA request to the Assessor on July 9, 2019, seeking “all applications for permits, permits, denials of permits and correspondence related to” five properties located in Lincolnwood, Illinois from January 1, 1950 to July 9, 2019. Requestor did not receive a response to his request.

On July 26, 2019, Requestor submitted a Request for Review to the PAC, alleging that the Assessor failed to respond to his FOIA request. On August 1, 2019, the PAC forwarded a copy of the Request for Review to the Assessor and asked the Assessor whether or not it had received and responded to Requestor’s request. The Assessor did not respond to the PAC. As of the date this binding opinion, neither Requestor nor the PAC had received a response from the Assessor’s Office.

Section 3(d) of FOIA states that “each public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request…” Because the Assessor did not comply with Section 3(d), the PAC ordered the Assessor to take immediate and appropriate action to provide Requestor with all records responsive to his request, subject only to permissible redactions.

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