Recent Court Decisions

The PAC held that the Ogle County Sheriff’s Office (Sheriff) violated FOIA by improperly withholding a police report involving the alleged sexual assault of a named minor.
 
On September 1, 2020, Lawyer submitted a FOIA request to the Sheriff seeking a copy of a July 2013 police report involving the alleged sexual assault of a named minor. In the request, Lawyer indicated the report was for his client, the father of the named minor, for a civil matter. Two days later, the Sheriff denied the FOIA request in its entirety based on Section 7(1)(a) of FOIA (which exempts the disclosure of information specifically prohibited from disclosure by federal or State law), simply stating it could not disclose juvenile reports. Lawyer then asked the PAC to review.
 
The PAC construed the Sheriff’s denial under Section 7(1)(a) as asserting that the Juvenile Court Act (JCA) prohibited disclosure of the police report. On September 15, 2020 the PAC, in a non-binding determination letter, informed the Sheriff that the JCA did not prohibit disclosure of records concerning crimes committed by adults against minors, and it asked the Sheriff if it would change its position on the disclosure. The Sheriff did not respond. Next, the PAC asked the Sheriff to provide it with copies of the withheld police report, along with a detailed explanation of the factual and legal bases for its assertion that Section 7(1)(a) of FOIA allowed it to withhold the police report. This time the Sheriff replied to the PAC, and it eventually provided a copy of the police report to the PAC.
 
On review, the PAC noted that the Sheriff did not provide any arguments or legal authority in support of the supposed Section 7(1)(a) exemption. Instead, the Sheriff simply asserted that “the police report in question…is entirely juvenile related” and because the report “pertains to the questioning of the juvenile and what happened to him” they were prohibited from disclosing it. The PAC noted that the Illinois Appellate Court requires a public body to provide a detailed rationale to satisfy its burden of demonstrating that records are exempt under FOIA, yet here the Sheriff’s response was “generalized and conclusory” – so the Sheriff did not meet its burden.
 
Even so, the PAC evaluated for itself whether the police report could be withheld under Section 7.5(bb) of FOIA, which expressly exempts from disclosure “information which is or was prohibited from disclosure by the Juvenile Court Act.” Looking to the JCA, the PAC noted that Section 1-7A of the JAC states that juvenile law enforcement records may be accessed by the minor who is the subject of investigation, arrest, or custodial detention along with the minor’s parents and any of their legal representatives. Moreover, Section 1-3(8.2) of the JCA defines “juvenile law enforcement record” as those relating to a minor suspected of committing an offense – not those where the minor is a victim, witness, or missing juvenile. Since the police report at issue involved a minor as a victim, the PAC found the JCA does not apply and therefore Section 7.5(bb) of FOIA does not exempt the report from disclosure. The PAC held that the Sheriff’s Office violated FOIA and directed the immediate disclosure of the police report to Lawyer. 
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The PAC held that the Board of Trustees (Board) of the Village of Roanoke violated OMA during a remotely held meeting on September 8, 2020 when it muted a discussion of public business.
 
On September 8, 2020, the Board held a remote meeting via Zoom. Two days later, a member of the public submitted a Request for Review with the PAC, asserting that the Board President had asked another Board member to mute all microphones during a discussion with the Roanoke Village Ambulance Chief and that at this time, the Board did not announce it was entering closed session or otherwise provide an explanation for why all microphones were muted.
 
The PAC construed this as an allegation that the Board violated Sections 2(a) and 7(e)(4) of OMA. Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless a specific exception applies. Section 7(e) of OMA permits public bodies to hold a remote meeting during a public health emergency (such as the current COVID-19 pandemic), and Section 7(e)(4) requires that when such a remote meeting is held, the public body must “allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or web-based link.”
 
The PAC requested that the Board explain how the public was allowed to connect to the September 8, 2020 remote meeting, and to provide copies of the agenda, minutes, and verbatim recording of it. The Board responded that it complied with Section 7(e) of OMA by livestreaming the meeting on Zoom, which allowed for public attendance and participation, but acknowledged that the meeting livestream was muted for approximately one minute. The Board explained that this one minute was essentially a “sidebar” between the Mayor and Village Clerk regarding the appropriateness of discussing a personnel matter in open session or closed session. The Board asserted this one minute “sidebar” did not violate Section 7(e) because it “is not uncommon for sidebars to occur during a public meeting to clarify a matter of procedure” but assured the PAC that it would not mute any future sidebars. 
 
The PAC concluded that Section 7(e)(4) “expressly and unambiguously requires that members of the public be able to contemporaneously hear all open session discussion” and it does not provide an exception for a “sidebar.” The PAC held that because members of the public could not contemporaneously hear the one minute muted discussion, the Board violated Section 7(e)(4) of OMA. To remedy this violation, the PAC directed the Board to make publicly available the complete verbatim record of the open session portion of the September 8, 2020 meeting.  
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

An Illinois Appellate Court found, once again, that public officials’ personal text messages and emails that are prepared for, used by, received by, or in the possession of a public body are public records for purposes of FOIA.

The Illinois Appellate Court in the First District affirmed a circuit court order which directed the City of Chicago Office of Mayor (Mayor’s Office) and Chicago Department of Public Health (CDPH) to inquire whether records exist pertaining to the presence of lead in the drinking water at Chicago Public Schools (CPS).
 
On June 7th, 2016, the Better Government Association (BGA) submitted a FOIA request to the Mayor’s Office and CDPH requesting “any and all communication between [the] Public Health Commissioner…and anybody in the mayor’s office and press office from April 1, 2016 to today.” The request was later modified to include “anything related to lead and CPS” and “any and all communication” between the Public Health Commissioner and other CPS officials. The Defendants (Mayor’s Office and CDPH) produced records but redacted or withheld others on the grounds that they were protected by Section 7.1 of FOIA.
 
On April 11th, 2017, the BGA filed a complaint in the circuit court. They argued that the Defendants violated FOIA by redacting and withholding the responsive records. The Plaintiffs (BGA) also argued that the Defendants improperly failed to inquire whether personal text messages and emails of the officials named in the requests contained responsive records.
 
The Defendants claimed that the redactions and withholdings were proper in their answer. The Mayor’s Office acknowledged that the officials named in the request used their personal email accounts for public business, but contended that it did not have the ability or any obligation to search the accounts for the responsive records.
 
On August 21, 2017, the Plaintiffs filed a partial motion for summary judgement. After hearing arguments from both sides, the circuit court held that the Defendant’s redactions were proper. However, the circuit court also held that the Defendants did not perform a reasonable search of the relevant officials because the personal text messages and emails were omitted.
 
To rectify this, the circuit court ordered the Defendants to “make inquiries as required to email custodians and supply affidavits from custodians regarding same” within 28 days. The Defendants went on to appeal the order.
 
In his opinion, the Honorable Michael T. Mullen stated that the Defendants did not cite a specific statutory exemption to make their case. Instead, they insisted that the personal text messages and emails did not constitute public records. To test this claim, Judge Mullen used two criteria (established in City of Danville v. Madigan, 421 Ill.Dec. 792 (2018)) that must be met to determine if the responsive records are public and therefore subject to disclosure under FOIA. First, the record must pertain to public rather than private business. Second, the record “must have been either (1) prepared by a public body, (2) prepared for a public body, (3) used by a public body, (4) received by a public body, (5) possessed by a public body, or (6) controlled by a public body.”
 
Judge Mullens found that the personal text messages and emails were “either prepared for, used by, received by, or in the possession of a public body,” which was sufficient to establish them as public records. For these reasons, the circuit court’s order was affirmed.
 

The PAC held that the Illinois Department of Corrections (IDOC) violated FOIA when it denied a request for data on head injuries of inmates in its custody.
 
On March 15, 2020, a Requestor submitted a FOIA request to IDOC seeking "access to and a copy of aggregate data on head injuries incurred since 2015 by inmates in [IDOC] custody, including time and place of injury, type or severity of injury, and cause of injury.” The request also sought, “records reflecting the department’s policies…regarding evaluating concussions or traumatic brain injuries for inmates and correctional officers or other employees when these happen within correctional facilities.”
 
IDOC responded that it did not have the requested data or policies, and claimed that since the requested records were furnished by their healthcare vendor, Wexford Health Sources, Inc. (Wexford), they were exempt from disclosing any responsive records it might have pursuant to Section 7(1)(g) of FOIA. Requestor submitted a Request for Review contesting the denial, and contended that the records were in fact subject to disclosure pursuant to Section 7(2) of FOIA.
 
Section 7(1)(g) of FOIA exempts, “[t]rade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business, and only insofar as the claim directly applies to the records requested.”
 
Section 7(2) of FOIA states that, “[a] public record that is not in the possession of a public body but 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[.]”
 
After completing its review, the PAC concluded that IDOC did not establish how the requested records constituted trade secrets, commercial or financial information, or how they would cause competitive harm to Wexford. The PAC held that since Wexford was contracted by IDOC to carry out duties for a public body (i.e. furnishing data), they were obligated to release the requested records. The PAC directed IDOC to release the responsive records to the requestor.
 
This opinion is binding only to the parties involved and may be appealed pursuant to State law.

The United States Supreme Court held that terminating employment based on sexual orientation or transgender status constitutes unlawful sex-based discrimination in violation of Title VII of the Civil Rights Act of 1964.

On June 15th, 2020, the United States Supreme Court held that terminating employment based on sexual orientation or transgender status constitutes unlawful sex-based discrimination in violation of Title VII.
 
The Court based its ruling on three different cases. A skydiving instructor and a child-welfare-services coordinator for Clayton County, Georgia sued their respective employers in federal court because they were terminated for being gay. They contended that such terminations violated Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, religion, sex, and national origin. The U.S. Court of Appeals for the 2nd Circuit ruled in favor of the skydiving instructor, however the U.S. Court of Appeals for the 11th Circuit ruled against the child-welfare-services coordinator in Clayton County.
 
The third lawsuit was filed by the Equal Employment Opportunity Commission (EEOC). In this case, an employee of a funeral home was fired because the employee told her employer that she would live as a woman. The district court ruled in favor of the funeral home, contending that Title VII does not protect transgender employees from discrimination. This decision would later be reversed by the U.S. Court of Appeals for the 6th Circuit.
 
The Supreme Court issued one ruling on all three cases. Justice Neil Gorsuch wrote for the majority, which included Chief Justice John Roberts, and Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.
 
Justice Gorsuch stated that the issue of whether an employer could terminate an employee because of sexual orientation or gender identity “is clear.” When an employer terminates an employee for such reasons, the employer “fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
 
Justice Samuel Alito wrote a dissenting opinion with Justice Clarence Thomas. Justice Alito argued that the Court improperly legislated the issue of transgender and homosexual discrimination into Title VII under the guise of textualism. He went on to argue that the issue is “not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”
 
Justice Brett Kavanaugh wrote a separate dissenting opinion. He contended that the phrase “discriminate based on sex” in Title VII does not include discrimination based on sexual orientation. Justice Kavanaugh would go on to say that “the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.”
 
This decision clarifies that Title VII’s prohibition of sex-based employment discrimination includes discrimination based on sexual orientation and transgender status. This is consistent with the 7th Circuit’s 2017 decision in Hively v. Ivy Tech. Discrimination based on sexual orientation and gender-related identity is also prohibited by the Illinois Human Rights Act.