Recent Court Decisions

The City of Carlinville (City) violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request. On March 18, 2017, an individual submitted a request for copies of various purchase card statements and cell phone statements since October 1, 2016, as well as copies of proof that elected officials completed FOIA and OMA training. Receiving no response, on March 28, 2017, the requestor requested the PAC review the City’s failure to respond. The PAC found that the City violated Section 3(d) of FOIA by failing to provide the requested records or to respond in writing to the FOIA request. The PAC ordered the City 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.

A public body violated FOIA by improperly redacting financial terms of contracts, billing invoices pursuant to those contracts, and financial terms from annual budgets, as well as improperly withholding its budget ordinances in their entireties. The City Clerk of the City of Taylorville submitted a FOIA request to Taylorville Sanitary District (TSD) for copies of all contracts between the District and Veolia Water North America—Central, LLC (Veolia) since 2010, as well as copies of any invoices from Viola during this time frame, and copies of the yearly budgets prepared and approved by TSD for the same time period. TSD furnished copies of 1,470 pages of records to the requestor but redacted most of the substantive financial information in the records and but did not include a partial denial letter identifying the reasons for the redactions. The requestor filed a Request for Review with PAC, complaining that TSD improperly redacted most of the information contained in the records. In response to an inquiry from PAC, TSD stated that the reason for redacting or withholding information was because the information was exempt from disclosure under Section 7(1)(g), because its agreement with Veolia “contains a confidentiality clause and that trade secrets, commercial and financial information was and continues to be exchanged pursuant to the agreement, including the confidentiality provisions, and that is the basis of the claim the information is proprietary, privileged and confidential.”

The PAC found that TSD violated Section 9(a) of FOIA by not providing the requestor with a partial denial letter stating the factual basis for its redaction or withholding of records. The PAC also found that TSD violated Section 7(1)(g) because though TSD claimed the information in dispute is confidential under a confidentiality clause in the agreement with Veolia, the agreement expressly requires confidential information to be clearly designated in writing as confidential, and none of the information at issue was so marked. Additionally, the confidentiality provision of the contract clearly states that it does not apply to information that is “required to be disclosed by operation of law.” Under Article VIII, Section 1(c) of the Illinois Constitution of 1970, “[r]eports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.” Additionally, Section 2.5 of FOIA states that “[a]ll records relating to the obligation, receipt, and use of public funds of the State, units of local government, and school districts are public records subject to inspection and copying by the public.” The records at issue directly relate to the District’s use of public funds and are, therefore, required to by disclosed, making the confidentiality provision on which TSD based its assertion of Section 7(1)(g) expressly inapplicable. The PAC ordered TSD to take immediate and appropriate action by disclosing to the requestor unredacted copies of the records, as well as unredacted copies of the budget ordinances that were not originally provided.

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

Cassandra Black, IASB Law Clerk

The City of Benton (City) violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request. On February 17, 2017, an individual submitted a request for “agendas and meeting minutes for Benton Airport for calendar years 2013, 2014 & 2015.” Within five days, an Airport Board Member responded to request a five day extension to substantively respond, stating the Airport Board had not appointed a FOIA director yet. On March 11, 2017, the requestor had yet to receive a response and requested the PAC review the City’s failure to respond. Next, the City told the PAC that “the Benton Municipal Airport” is a separate entity from the City and therefore the City was not responsible for responding to FOIA requests directed to the Airport.

The PAC found that the City violated Section 3(d) of FOIA by failing to provide the requested records or to respond in writing to the FOIA request. The PAC reasoned that though the Airport Board Member sent the requestor a letter on February 17, 2017, FOIA does not allow a public body to extend the timeline for response for the reason stated in the letter (that the Airport did not have a FOIA director). Moreover, the PAC was not persuaded that the City and Airport are separate entities, and instead found that the Airport is “City-owned property.” Therefore, the City is the public body ultimately responding to the FOIA request. The PAC ordered the City 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 Office of the Governor (Governor’s Office) violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request. On March 10, 2017, an individual submitted a request via email for documents concerning “emails that Deputy Governor Leslie Munger sent or received since she became Deputy Governor; and Munger’s daily schedule for the next six months.” Ten days later, the requestor sent a follow-up email stating she had not received a response to her FOIA. Continuing to receive no response, the requestor sent six emails between April 18, 2017 and May 4, 2017 inquiring about her FOIA request. On May 5, 2017, the requestor still had not received a response from the Governor’s Office and requested the PAC review the matter. The PAC forwarded the Request for Review to the Governor’s Office twice but, as of the date of this binding opinion, had not received a response.

The PAC found that the Governor’s Office violated Section 3(d) of FOIA by failing to appropriately respond to a FOIA request. The PAC ordered the Governor’s Office to immediately provide all records in response to the FOIA requestor, subject only to any permissible redactions under Section 7. Again, the bottom line here is that public bodies must respond to FOIA requests within the time permitted per statute.

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

The Better Government Association (BGA) issued a FOIA to the Illinois High School Association (IHSA) for all of its contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012-13 and 2013-14 fiscal years. The IHSA responded that it was a not-for-profit charitable organization not subject to FOIA. BGA subsequently requested the same records from District 230, a member public school district of IHSA. The District responded that it did not have the requested records, and that the requested records did not fall under section 7(2) of FOIA because they were not prepared by or for the District, were not used by, received by, in the possession of, or under the control of the District, and did not pertain to the transaction of the District’s public business. BGA challenged the denials by filing a complaint against both IHSA and the District. IHSA and the District filed a motion to dismiss, which the trial court granted, finding that IHSA is not a public body subject to FOIA and that Section 7(2) of FOIA did not apply to the District because IHSA was not performing a governmental function on behalf of the District. The appellate court affirmed the trial court’s decision.

The Illinois Supreme Court affirmed the lower court’s decision. It found that IHSA does not fall within one of the specifically enumerated bodies of the State or local government, and used a four-part test to determine that it is not “any subsidiary” of a governmental unit subject to FOIA.

The Court also looked at whether IHSA contracted with District 230 to perform a governmental function on the District’s behalf and, if so, whether the requested records were directly related to that governmental function. The Court found that the responsibility to govern and coordinate interscholastic athletic competitions for public and private school students is not one of the functions of the District as set forth in the School Code. Therefore, IHSA was not acting on behalf of the District to perform the District’s responsibilities, nor did the District delegate any of its governmental functions to the IHSA. Because IHSA was not contracted to perform a governmental function on behalf of the District, the requested records are not public records of the District under Section 7(2) of the FOIA.

Cassandra Black, IASB Law Clerk