The Office of the Governor violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request. On September 14, 2017, an individual submitted a request for a log of FOIA requests received by the Governor since July 1, 2017. The requestor received no response and subsequently requested the PAC review the Governor’s failure to respond. The PAC found that the Governor violated Section 3(d) of FOIA by failing to provide the requested records or to respond in writing to the FOIA request. The PAC ordered the Governor’s Office to immediately provide all records in response to the FOIA requestor, subject only to any permissible redactions under Section 7.

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

The school district had the right to not only discipline student C.E. for racist and derogatory content directed toward specific students that he posted on an Instagram account, but also to discipline other students who commented on and/or “liked” certain posts.

In November 2016, Plaintiff C.E. created an Instagram account and granted access to a group of Albany High School (AHS) students. In March 2017, AHS students and school personnel discovered the account and its contents. The account contained 30-40 posts, many of which targeted AHS students and school personnel with racist and derogatory content, including a picture of an African-American AHS student and an African-American AHS basketball coach with nooses drawn around their necks. The district expelled C.E. and suspended students who had commented on or “liked” C.E.’s posts, as well as one student who had access to the account but never commented on or otherwise responded to it online.

The Court first considered whether the speech at issue was school speech, and found that it was because a “nexus” to the school existed (account followers were mostly school students, the posts featured 10 different students and school personnel, and the posts depicted school activities and were clearly taken on campus). In addition, even though C.E. intended that the Instagram account remain private, it was reasonably foreseeable that the speech would reach the school and create a risk of substantial disruption.

Next, the Court found that because the speech substantially disrupted school and invaded the rights of others, the district appropriately disciplined C.E. and those who commented on or “liked” his posts that targeted specific students. “There is no doubt that these plaintiffs meaningfully contributed to the disruptions at AHS by embracing C.E.’s posts in this fashion” the Court stated.

Notably, the Court did not uphold the discipline of four other students, who had neither approved of nor adopted any content targeting specific individuals within the school. The Court reasoned that “endorsement of speech that is offensive or noxious at a general level differs from endorsement or encouragement of speech that specifically targets individual students.”

This case is not binding in Illinois, however it reflects the increasing trend of courts to recognize the right of school districts to discipline students for certain misconduct that occurs off-campus via social media.

A Board of Trustees of a village (Board) violated OMA by improperly using Section 2(c)(4) to enter closed session to discuss the conduct of one of its Board members.

Here, the Board member whose conduct was at issue had made racist comments during a May 2017 Board meeting. In response, the agenda for the Board’s August 8, 2017 meeting identified a resolution concerning the Board member’s comments as an item for discussion, however the Board entered closed session for the discussion and cited Section 2(c)(4) of OMA to do so. Section 2(c)(4) allows a public body to enter closed session to discuss “evidence or testimony presented in open hearing, or in a closed hearing where specifically authorized by law, to a quasi-adjudicative body.” Under OMA, a “quasi-adjudicative body” is “an administrative body charged by law or ordinance with the responsibility to conduct hearings, receive evidence or testimony and make determinations based thereon, but does not include local electoral boards when such bodies are considering petition challenges.”

Upon reviewing the closed session verbatim recording of the August meeting, the PAC found that the Board did not consider evidence or testimony – they just discussed a resolution regarding the Board member’s comments. Even if the Board had considered evidence or testimony, they would have done so as a legislative body, so Section 2(c)(4) could not apply.

Because the Board improperly entered closed session to discuss the conduct of one of its members, the PAC ordered the Board to publicly disclose the portion of the closed session verbatim recording containing this discussion.

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

McClean County (County) violated FOIA by denying a request made on September 6, 2017, for copies of recent FOIA requests submitted to the County and its responses to those requests. The County denied the FOIA request on the basis that it “did not meet the purpose and intent of [FOIA].” It believed that the requester was improperly trying to obtain information about private individuals rather than information concerning government. The County, however, did not assert any specific statutory exemptions under FOIA in its denial. The PAC found that the County’s denial of the request was improper because under Section 3(c) of FOIA, public bodies may not “require the requester to specify the purpose for a request, except to determine whether the records are requested for a commercial purpose or whether to grant a request for a fee waiver.” FOIA does not allow a public body to deny a FOIA request based on what it believes to be the underlying motive of the request. The PAC ordered the County to provide records responsive to the FOIA request, subject only to redactions permitted under Section 7 of FOIA.

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

A County Housing Authority (Housing Authority) violated FOIA by improperly denying the release of recordings of public board meetings in response to a reporter’s FOIA request. On August 23, 2017, a reporter requested, among other items, copies of “all audio recordings taken during Board of Commissioner meetings in 2017.” The Housing Authority denied the request for audio recordings, stating they were preliminary materials exempt from disclosure under FOIA Section 7(1)(f).

The Section 7(1)(f) exemption applies to “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.” Importantly, Section 7(1)(f) is intended to protect the communication process and encourage frank and open discussion before a final decision is made, so only portions that reflect the give and take of the deliberative process may be withheld.

On review, the PAC found that Section 7(1)(f) does not apply to recordings of public meetings because information that is already public knowledge is not within the scope of the deliberative process exemption. Although the verbatim recordings may reflect preliminary discussions of matters pending before the public body, by virtue of the meetings being open to the public their recordings are subject to disclosure. The PAC ordered the Housing Authority to immediately disclose the recordings to the reporter.

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