Withholding Communications Exchanged with Third Party and Subsequently Sent to Attorney

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 City of Chicago (City) Department of Law (Department) improperly withheld records responsive to a FOIA request seeking correspondence involving Mr. Robert Blackwell Jr.’s companies and the City. The records requested are messages and documents exchanged between Robert Blackwell, Jr., and the City's then-Chief Operating Officer, Paul Goodrich, involving City contracts. The Department's response to the PAC stated that those records were subsequently "received by an attorney for the City from a client-department as part of the client's seeking legal guidance” and therefore exempt from disclosure under FOIA.

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). 

In Johnson v. Frontier Ford, Inc., 68 Ill. App. 3d 315, 317 (1979), the Illinois Appellate Court addressed whether the attorney-client privilege protects pre-existing documents forwarded by a client to their attorney in connection with a request for legal advice. The Court reasoned such records are not protected unless the privilege otherwise applied before the attorney obtained them.

Here, the PAC reviewed the records at issue and determined that the records requested were not exempt from disclosure pursuant to Section 7(1)(m) because the withheld records did not originate in confidence between parties engaged in an attorney-client relationship and were not exchanged for the purpose of securing or providing legal advice. The PAC further noted that, “sending an attorney communications exchanged by a City employee and a third-party contractor for the City does not transform those records into privileged attorney-client communications.” The PAC concluded that the Department did not sustain its burden of demonstrating that the records are exempt from disclosure pursuant to section 7(1)(m) of FOIA. The PAC determined that the Department improperly withheld the contested record and directed the Department to provide unredacted copies of the withheld records to the requester.

A copy of the decision can be found here.