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 19, 2018, the Third District Appellate Court of Illinois (Court) found that the Joliet Police Department (Joliet) properly refused to disclose an officer’s disciplinary records which were more than four years old based upon Section 7.5(q) of FOIA (5 ILCS 140/7.5(q)) and Section 8 of the Personnel Records Review Act (“PRRA,” 820 ILCS 40/8).

Here, FOIA requestor Maceo Johnson requested the disciplinary history of one of Joliet’s officers. Joliet denied Johnson’s FOIA request, citing Section 8 of the PRRA, which prohibits employers from releasing to a third party records of disciplinary action which are more than four years old. “Information prohibited from being disclosed under the Personnel Records Review Act” is statutorily exempt from inspection and copying by Section 7.5(q) of FOIA. Johnson, however, argued that the PRRA’s prohibitions do not apply to FOIA requests because Section 11 of the PRRA states that “This Act shall not be construed to diminish a right of access to records already otherwise provided by law, provided that disclosure of performance evaluations under the [FOIA] shall be prohibited.”

Reviewing the interplay of FOIA and the PRRA, and interpreting them so that no word or phrase would be rendered superfluous or meaningless, the Court found that Johnson’s argument failed. “To avoid rendering section 7.5(q) of FOIA wholly meaningless, we find that the prohibition on disclosure of disciplinary records more than four years old, found in section 8 of the [PRRA], is applicable to FOIA requests and that such records are thus exempt from FOIA.”

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.

In 2014, Dale Kleber, an experienced attorney, applied for a senior counsel position with CareFusion Corporation, a healthcare company. The job posting for the position stated that applicant must have “3 to 7 years (no more than 7 years) of relevant legal experience.” Despite being otherwise well-qualified, Mr. Kleber was not selected for an interview, and the company eventually filled the position with a 29-year-old applicant. He filed an EEOC charge and subsequently, a federal lawsuit, against CareFusion, claiming that the company’s use of a hard cap for years of experience violated the Age Discrimination in Employment Act (ADEA) because it had a disparate impact on qualified applicants over the age of 40. CareFusion claimed the lawsuit should be dismissed because the language of the disparate impact provision of the ADEA refers to “employees,” but not specifically to “applicants.” The Seventh Circuit denied CareFusion’s motion to dismiss the ADEA claim, finding that the ADEA language and overall legislative purpose of the ADEA were broad enough to cover Mr. Kleber’s claim. The disparate provision of the ADEA states that it is unlawful for an employer to “limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” Specifically, the court found that the maximum experience requirement in CareFusion’s job posting was a classification that that deprived or tended to deprive Mr. Kleber from having status as an employee at the company, because of his age. In light of this decision, school districts, as employers covered by the ADEA, should evaluate their hiring practices to determine if they will have a disparate impact on applicants over the age of 40. If such an adverse impact exists, the practice is only permissible under the ADEA if it is justified by a “reasonable factor other than age.” 26 C.F.R. 1625.7. Consult the board attorney for advice on specific practices.

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.