Recent Court Decisions

The Village of Washington Park (Village) violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to three FOIA requests. On February 21, 2018, an individual submitted three FOIA requests to the Village seeking certain records pertaining to the Village and its Fire Department. On March 14, 2018, having received no responses from the Village, the Requestor submitted three Requests for Review to the PAC. On March 22, 2018, the PAC forwarded copies of the Requests for Review to the Village, asking the Village if it had received and responded to the Requestor’s FOIA requests and also asking that, if the Village had not yet responded, it do so. The Village did not respond to the PAC’s first letter, so it reached out the Village again, on April 6, 2018. The Village did not respond to the PAC’s second letter, and as of the issuance of this June 26, 2018 binding opinion, the PAC had not received a response from the Village.

The PAC found that the Village violated Section 3(d) of FOIA by failing to respond to the three FOIA requests. The PAC ordered the Village 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 Illinois Department of Corrections (IDOC) violated FOIA by improperly denying a FOIA request as an unduly burdensome repeated request. On November 7, 2017, a ProPublica Illinois Reporter (Reporter) submitted a FOIA request to IDOC seeking various records concerning the Illinois Impact Incarceration Program. On November 27, 2017, IDOC: 1) provided the Reporter with copies of some responsive records; 2) denied other responsive records pursuant to Section 8.5(a) of FOIA (which states a public body is not required to copy a record published on its website but it must notify the requestor that the record is available online and direct the requestor to the website); and 3) stated it did not “maintain or possess additional records responsive to” the Reporter’s request. The Reporter disputed IDOC’s assertion that it did not “maintain or possess” certain responsive records, and she submitted a Request for Review to the PAC on February 2, 2018. The PAC did not review the matter because the Reporter’s Request for Review was more than 60 days after IDOC’s alleged denial, but it suggested the Reporter file a new FOIA request with IDOC.

On March 6, 2018 the Reporter did just that, and on March 12, 2018 IDOC denied the Reporter’s request pursuant to Section 3(g) of FOIA, which permits a public body to deny a request as unduly burdensome if it is a repeat request from the same requestor for the same records that are unchanged or identical to records that were “previously provided or properly denied.” On March 15, 2018, the Reporter submitted a Request for Review to the PAC, disputing IDOC’s assertion that her request was an unduly burdensome repeated request and alleging that IDOC’s response was incomplete because it did not include certain responsive records. The PAC asked IDOC to explain how it searched for responsive records and to specifically address the allegedly missing records. In response, IDOC did not answer the PAC’s questions but instead argued that the basis for its original denials of the Reporter’s first FOIA request were irrelevant and that the only question should be whether the Reporter had previously requested the same records. The PAC did not buy IDOC’s argument, stating that “a public body may only deny a FOIA request as an unduly burdensome repeated request only if it has previously provided the requestor with all of the nonexempt responsive records or properly denied the same FOIA request by the same requester in accordance with FOIA,” so it is necessary to look back to the original request and response to determine whether the public body met that burden.

The PAC found that IDOC failed to demonstrate that it properly denied the Reporter’s March 6, 2018 FOIA request as an unduly burdensome repeated request. The PAC ordered IDOC to thoroughly search for the allegedly missing records and provide any newly-located records 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.

On June 27, 2018, the U.S. Supreme Court (Court) issued its decision in Mark Janus v. American Federation of State, County and Municipal Employees, Council 31, et al. (Janus), holding that public sector agency fee arrangements, also known as “fair share fees”, unconstitutionally violate the First Amendment free speech rights of nonconsenting public-sector employees by compelling them to subsidize private speech on matters of substantial public concern. Fair share fees are the fees which unions collect from non-members pursuant to a provision in a controlling collective bargaining agreement (CBA). The fair share collection was previously permitted by law under the theory that non-members benefit from the CBA the union has with an employer and should not be permitted to “free ride.”

Prior to Janus, fair share fees had been permitted to cover the cost of union activities that benefit non-members – they could not be expanded for use by unions to express political views, to support political candidates, or to advance other ideological causes not germane to the union’s collective bargaining and related duties. In 1977, fair share fees were declared constitutional by the Court in Abood v. Detroit Board of Education (Abood).

The Court’s decision in Janus overturns Abood, under the reasoning that assessing fair share fees violates the First Amendment and Abood was an anomalous decision that erred in concluding otherwise. Notably, the Court further held that “[n]either an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” In other words, employees must opt in to pay union fees, and the Court held that such agreement “must be freely given and shown by ‘clear and compelling’ evidence.” The Court stated this cannot be met “unless employees clearly and affirmatively consent before any money is taken from them.”

Janus’s implications for public school districts are wide-ranging. As such school boards may want to discuss the potential local implications with their board attorneys. For further information, see Janus v. AFSCME: Implementation Issues for School Boards (June 2018, Published by ICSA) at www.iasb.com/law in the in the section Guidance and Legal Issues.

During the winter of 2015, school board member Claudia Manley got into a verbal altercation with a student who was leafletting for Manley’s political opponents outside a high school play. Manley insisted the student’s leafletting violated school board policy, and the student alleged that Manley bullied her. After an investigation, Manley was found to have violated a board policy calling for “mutual respect, civility and orderly conduct” at school events and received a formal warning for violating board policy and overstepping her authority in attempting to unilaterally enforce the district’s leafletting policy. While the investigation was unfolding, Manley’s lawsuit evolved into a federal suit claiming that the district violated the Due Process Clause of the U.S. Constitution because its investigation deprived Manley of the following three alleged liberty interests: 1) a feeling of fair-dealing on the part of the government; 2) mental and emotional well-being; and 3) entitlement to processes mandated by the State and the district. The allegations were unsuccessful before the U.S. District Court for the Northern District of Illinois (trial court) and the Seventh Circuit Court of Appeals (appellate court). Stating that “American politics is not for the thin-skinned, even, or perhaps especially, at the local level,” the Seventh Circuit Court of Appeals held that none of Manley’s alleged liberty interests were constitutionally recognized, and Manley’s federal case was dismissed. This case illustrates the importance of board members: a) respecting the board-superintendent relationship; and b) empowering the superintendent to enforce board policies (instead of attempting to unilaterally enforce board policies, because board members have no legal authority as individuals (105 ILCS 5/10-16.5)). IASB’s Foundational Principles of Effective Governance and PRESS sample policy 2:130, Board-Superintendent Relationship, provide further information about the complementary roles of the board and superintendent. PRESS sample policy 2:80, Oath of Office provides information about the legal authority of individual board members. Last, this case also serves as a reminder that board members, like district employees and agents, may be subject to complaints of improper conduct toward students under various board policies, such as PRESS sample policies 2:260, Uniform Grievance Procedure, 7:20, Harassment of Students Prohibited, and 7:180, Prevention of and Response to Bullying, Intimidation, and Harassment.

Student Elizabeth Castillo (Castillo) and her family sued the district after Castillo was physically attacked by another student, Estrella Martinez (Martinez) off-campus. Castillo alleged that the district: 1) failed to discipline Martinez for her on-campus harassment of Castillo, in violation of the School Code’s bullying prevention statute, and 2) failed to prevent Martinez’s off-campus attack when it should have taken “supervisory” actions, such as calling Castillo’s parents or the police, or allowing Castillo to remain at school to avoid Martinez.

Castillo’s failure to discipline claim involved Section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act, 745 ILCS 10-2-201), which applies to public employees performing discretionary functions. The Court noted that the School Code’s bullying prevention statute “only mandates that every school district create a policy on bullying; it does not mandate that a school respond to a particular instance of bullying in a particular way.” Because implementation of the district’s anti-bullying policy required both discretion and decision making by school officials, the Court found that the district was immune under Section 2-201 of the Tort Immunity Act.

Castillo’s failure to prevent claim involved Section 4-201 of the Tort Immunity Act (745 ILCS 10/4-201), which provides that neither a public entity nor its employees are liable for failure to provide police protection service. Illinois courts have repeatedly held that school officials are immune from suit when a student is harmed off-campus, even if school officials knew that violence was likely. Castillo attempted to distinguish her case by arguing she did not allege the district should have acted in the role of police to prevent Martinez’s attack, but that it should have protected her through “supervisory” actions. The Court did not buy this argument, stating there is no case distinguishing Castillo’s suggested actions as “supervisory” instead of “police,” and that the “supervisory” actions Castillo suggested could “inevitably slide into the area of school discipline,” which is covered by Section 2-201 immunity.