Recent Court Decisions

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.

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.
 

Kankakee County (County) violated Section 3(d) of FOIA by failing to respond to a FOIA request.

On October 21, 2019, Requestor emailed a FOIA request to the County, seeking copies of agreements between the County and World Fuel Services, Inc., as well as any ordinances/resolutions passed by the County authorizing any agreement and/or amendment between them. Requestor did not receive a response to his request.
On October 30, 2019, Requestor submitted a Request for Review to the PAC, alleging that the County failed to respond to his FOIA request. On November 7, 2019, the PAC forwarded a copy of the Request for Review to the County and asked the County whether or not it had received and responded to Requestor’s request. The County did not respond to the PAC. The PAC sent another letter to the County on December 3, 2019, and the County again failed to respond. Finally, on December 12, 2019, the County emailed Requestor stating the County was still “trying to locate” responsive records and apologizing for the delay. As of the date of this binding opinion, neither the PAC nor Requestor received a response from the County.

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 County did not comply with Section 3(d), the PAC ordered the County 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.

The Village of Sauk Village (Village) violated OMA by failing to approve minutes of three meetings within the time periods required by OMA.

At its regular meeting on November 12, 2019, the Village approved minutes from its September 10, 2019 regular meeting, its September 10, 2019 special meeting, and its September 17, 2019 Committee of the Whole meeting. Section 2.06(b) of OMA requires that public bodies “approve the minutes of its open meeting within 30 days after that meeting or at the public body’s second subsequent regular meeting, whichever is later.” Section 2.06(b) further requires that approved minutes be made available for public inspection within 10 days after approval by the public body.

Responding to the PAC’s inquiry, the Village admitted it had failed to approve minutes during the time period required by Section 2.06(b), but argued that it was “impossible to meet the tenets of OMA relative to completing minutes within a thirty (30) day period” due to a “significant increase in meetings” and staffing shortages. The PAC found that the plain language of Section 2.06(b) was clear and that it contained no exception that authorizes a public body to delay approval of minutes. The PAC ordered the Village to develop protocols to ensure that it approves all meeting minutes within 30 days of those meetings or at its second subsequent regular meeting, whichever is later.

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

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.