Transparency Reporter

The Transparency Reporter is a new monthly KTJ summary on recent FOIA and OMA court decisions, PAC decisions and legislation changes. In this month’s report we summarize several recent Appellate Court decisions, a PAC decision and a US Supreme Court decision that address unduly burdensome FOIA requests, the security and vulnerability exemption to FOIA, the preliminary/draft records exemption to FOIA, and the probable or imminent litigation exception to OMA.

Contact attorneys James V. Ferolo or Mallory A. Milluzzi who authored this Legal Alert by email at jvferolo@ktjlaw.com or mamilluzzi@ktjlaw.com or by phone at (312) 984-6400. James Ferolo and Mallory Milluzzi were assisted in drafting this Legal Alert by Emily Shapiro, Summer Associate of Klein, Thorpe and Jenkins Ltd.

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Freedom of Information Act

Security Plan & Redacting When Possible

Labs v. City of Chicago Mayor’s Office, 2021 IL App (1st) 192073

The Appellate Court reaffirmed that public bodies must redact where possible, even if large portions of a document are exempt under FOIA. In this case, Plaintiff, Lucy Parsons Labs, submitted a FOIA to the City of Chicago for a copy of the City’s “action” plan regarding the public response to the verdict in the Jason Van Dyke murder trial. The City denied the FOIA request, stating that the entire Action Plan was exempt under Section 7(1)(v) of FOIA – which exempts vulnerability assessments, security measures and response policies and plans that identity, prevent or respond to potential community attacks. The Appellate Court emphasized that Section 7(1)(v) of FOIA only exempts these vulnerability assessments, security measures and response policies and plans to the extent the disclosure would reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. The Court found that while portions of the Plan were clearly exempt, there were likely portions, like the introduction and table of contents that would not put persons at risk or jeopardize the effectiveness, and therefore the City had not met its burden that the entire Plan was exempt.

Court finds that 28,000 Responsive Records was not Per Se Unduly Burdensome

Greer v. Board of Education of City of Chicago, 2021 IL App (1st) 200429

The Appellate Court found that as a matter of law, the Plaintiff’s FOIA request which resulted in 28,000 responsive records was not unduly burdensome and the City had to review all of the records for exemptions. The Plaintiff in this case requested from the City, (1) all documents covering the years 1999 through 2005 from the Equal Employment Opportunity Commission (EEOC) “dealing with any complaint by Tyrone J. Greer for racial discrimination”; (2) any information for the same years “sent to and received from the EEOC, any judge, internal administrative department, and individuals with administrative powers concerning Tyrone J. Greer dealing with any charge of racial discrimination”; and (3) “[a]ny decision, censorship, conclusion, and warning that came from the EEOC, any administrative judge, and a legitimate court system concerning any and all complaints dealing with Tyrone J. Greer and the Chicago Public School/Chicago Board of Education.” The City notified the Plaintiff that his request was unduly burdensome, as it was 28,000 pages of records that would need to be reviewed and redacted for exempt information. The Court found that the City’s affidavit did not resolve the issue of fact about the burdensome nature of the records and found that there was a significant public interest in allegations of racial discrimination by pubic bodies and the Board’s response to those allegations, even if it involves only one employee. The most concerning aspect is that the First District Appellate Court stated that unduly burdensome is not grounds for summary judgment, which is in direct conflict with the Fourth District Appellate Court’s holding in Shehadeh v. Madigan, 2013 IL App (4th) 120742, which found that a request requiring the Attorney General to review 9,200 responsive records was unduly burdensome and granted summary judgment.

Outside Consultant Communications Can be “Preliminary” Records

Fischer v. Office of Illinois Attorney General by Rao, 2021 IL App (1st) 200225

The Appellate Court found that an outside consultant hired by the public body was considered intra-agency communications and were exempt from disclosure under Section 7(1)(f) of FOIA. Here, the Office of the Attorney General (“OAG”) had hired Kurtzman Carson Consultants to implement a notice plan and administer the claims process related to certain litigations filed by the OAG. The plaintiff received a notice from KCC and submitted a FOIA request for communications between KCC and OAG regarding this claims and settlement process, which was denied under 7(1)(f) of FOIA as preliminary. The Appellate Court emphasized that when a consultant is hired by a public body to perform tasks for the public body that the public body could have done; their communications are intra-agency communications. The distinguishing factor is whether a consultant has their own independent interests, or whether their interests align with or are for the public body. The appellate court further found that the communications between KCC and OAG were of a preliminary and deliberative nature because not only did the OAG not yet adopt and submit a final distribution plan with the circuit court, but the communications were directly related to the process by which OAG formulated its policies on settlement eligibility.

U.S. Supreme Court Provides Some Clarity on Pre-Decisional Documents

United States Fish and Wildlife v. Sierra Club, 141 S. Ct. 777 (March 4, 2021).

The U.S. Supreme Court recently ruled on a Federal FOIA case that involved its preliminary and deliberative communications exception. As Illinois courts look to federal case law on this issue, it may be helpful to share the U.S. Supreme Court’s language. Notably, the U.S. Supreme Court recognized that a document is not final solely because nothing else follows it but rather, one must look at whether the document or communication communicates a policy on which the agency has settled. The analysis is whether the public body treats the document as its final view on said policy matter. In this case, the court found that the Fish and Wildlife Service’s draft biological opinion that it sent to the EPA was a draft.

Duty to Confer with Requestor

Public Access Counselor Opinion, 21-001, issued January 26, 2021

Public Access Counselor Opinion 21-001 was issued as a reminder that public bodies have a duty to “confer” with requestors when a public body has designated a request as unduly burdensome. This duty to confer includes discussions with a public body about how systems operate or how files are kept, as this can help a requestor understand reasonable limitations and abilities of the public body to respond to their request. While generally a public body does not have to answer questions or explain records, an exception is the duty to confer on an unduly burdensome request. Here, the requestor had asked the Chicago Police Department for copies of subpoenas from any federal law enforcement or regulatory agencies and any search warrants served on the Chicago Police Department over a one month time frame. The CPD had asserted the request was unduly burdensome as it did not have an automated mechanism by which to track, query or limit a search of subpoenas or search warrant records and thus would have to manually retrieve and individually review each subpoena and search warrant (of which there were over 3,000). The requestor asked to confer to discuss how CPD keeps these records and how it tracks incoming subpoenas, and in general, his requests for information and to discuss his FOIA in order to narrow it were ignored by CPD. As such, the PAC found that CPD had failed to engage in a “good faith dialogue” with the requestor, as is required under Section 3(g) of FOIA.

Open Meetings Act

A Lawsuit Needs To Be More Likely Than Not To Be Instituted Or Close At Hand To Go Into Executive Session

The City of Bloomington, Illinois v. Kwame Raoul and Jason Chambers, 2021 IL App (4^th) 190539 (April 26, 2021)

The Illinois Appellate Court upheld the Attorney General’s binding opinion that found that the City of Bloomington violated the Open Meetings Act when it improperly cited probable or imminent litigation as a basis for the closed session. In 1986, Bloomington and Normal entered into intergovernmental agreement providing shared revenue and expenses between the two communities. The agreement provided that it could be cancelled or revised by mutual decision. In November of 2016, the Bloomington City Manager wrote to the Normal elected officials alerting them that the City Council intended to vote on termination of the agreement. The letter further expressed Bloomington’s desire to collaborate on termination and briefly mentioned the possibility of litigation, if necessary, to effectuate termination. Normal’s mayor followed up and mentioned Normal’s willingness to discuss a termination plan. On February 20 2017, the Bloomington City Council during its regular meeting went into executive session in order to discuss “probable litigation.”

After the mayor opened the closed meeting, Bloomington’s City Attorney reminded the City Council that it should not discuss “how” the agreement should end and should only be discuss the best option to get the city in or out of litigation. During the closed session, those attending focused their attention on three areas: (1) the public relations aspects of terminating the agreement, (2) possible approaches to terminating the agreement, and (3) the economics involved with various options and other relationships with Normal.  More than once, the city attorney not only warned the group about discussion of matters other than proper litigation topics, he also interjected during the meeting to remind the members again.

There were comments during the closed session that fell into three categories relating to the topic of litigation, (1) the uncertainty of what a court might do, (2) the options likely to result in litigation, and (3) use by either Bloomington or Normal of the threat of a lawsuit as a negotiating tactic; however, much of the time spent during the meeting did not focus on litigation related issues.

The Appellate Court and Attorney General found that City Council members did not reasonably believe that such litigation was probable or imminent. It relied on the fact that council members had noted that that was “no clear cut road as to whether Normal will sue the city” and any lawsuit would be a “minor issue,” as well as the Mayor’s statements that the he doubted Normal would file a suit. Additionally, the Court found that while conducting the executive session, the members of the City Council did not focus their discussion on litigation related matters and instead focused on the public relations aspect of this dispute.

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Assisted by Emily Shapiro, Summer Associate of Klein, Thorpe and Jenkins, Ltd. (picture unavailable)