Recent Court Decisions

Defendant The Kernel Press (The Kernel), the student-run newspaper of Plaintiff University of Kentucky (UK), requested from UK copies of all records detailing a professor’s resignation within the context of a sexual assault complaint filed by two students. UK refused to disclose records containing personally identifiable student information under the Family Educational Rights and Privacy Act (FERPA), reasoning that disclosure would be an invasion of the students’ personal privacy. The Kernel appealed to the Kentucky Attorney General, who ordered UK to disclose the records with student identifiers redacted. UK appealed to Kentucky circuit court.

The Court found that while FERPA generally permits disclosure of employment records directly related to an employee in their employment capacity, these records also directly related to the students, making them educational records protected by FERPA. As such, the Court found them exempt from disclosure under the Kentucky Open Records Act. The Court also held that the records could not be disclosed in redacted form because redaction would not offer adequate protection, as details in the records would make it easy for one to identify the students with reasonable certainty.

Although not binding in Illinois, this case reminds public bodies that investigative documents regarding an employee may also be educational records under FERPA if the records also directly relate to a student. Additionally, educational records that cannot reasonably be redacted to support a student’s privacy rights do not need to be released.

Cassandra Black, IASB Law Clerk

For the sixth time this calendar year, the PAC has told public bodies they must respond to FOIA requests. An individual submitted a FOIA request via email to the Housing Authority of Cook County for all correspondence between the Authority and the Buckeye Community Hope Foundation from March 1, 2015 to July 25, 2016. Eleven business days later, the Authority emailed the FOIA requestor, stating it had questions regarding the FOIA request. The Authority eventually obtained written clarification from the FOIA requester regarding the records sought, however the Authority never actually responded to the FOIA request. The Authority also failed to respond to the PAC’s inquiries. The PAC found the Authority violated Section 3(d) of FOIA by failing, within five business days after receiving the FOIA request, to provide the requested records, deny the request in whole or in part, or to notify the FOIA requestor in writing that it was extending the time for a issuing a response. The PAC ordered the Authority to immediately provide all records responsive to the FOIA requester, 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.

For the second time two calendar years, the PAC has told public bodies that the amount of compensation paid by the public body is subject to disclosure unless it is otherwise exempted.

An individual submitted a FOIA request to the Housing Authority of the City of Freeport for the names and titles of staff members receiving bonuses, as well as the amount of the bonuses. The Authority denied the request in its entirety, asserting that the requested records were exempted under: FOIA Section 7(1)(b) as a “unique identifier” that could be considered personal financial information; FOIA Section 7(1)(c) as personal information that could constitute an “unwarranted invasion of personal privacy”; and the Personnel Record Review Act (820 ILCS 40/). Unpersuaded by these attempts at claiming exemptions, the PAC held that the requested records were subject to disclosure under FOIA Section 2.5 because employee compensation relates to the use of public funds. The PAC ordered the Authority to immediately provide the FOIA requester with records sufficient to show the bonuses paid.

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

The public body violated Section 2(a) of OMA at its September 26, 2016 meeting by improperly relying upon Section 2(c)(1) to engage in a closed session discussion of an across-the-board pay raise for non-union employees. Section 2(c)(1) permits public bodies to close a portion of a meeting to discuss “the appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body,” but it does not permit a public body to discuss in closed session budgetary matters concerning broad categories of employees. The PAC ordered the public body to make publicly available the portion of the closed session verbatim recording of its September 26, 2016 meeting related to an across-the-board pay raise for non-union employees.

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

Rules that require advance notice to the public body before recording a meeting may violate OMA. Here, a public school district prohibited an individual from recording its September 20, 2016 board meeting because the individual only provided notice of his request to record 10 minutes before the meeting began, and the school district’s practice was to require 24-hours’ advance notice. In addition, this particular meeting took place in a school learning resource center, where students were present, and the school district asserted that 10 minutes’ advance notice did not allow sufficient time to arrange for the individual to record the meeting from a location that would prevent student images from appearing in it. Citing to PAC Opinion No. 12-010 (June 5, 2012), the PAC affirmed that any rule requiring advance notice of recording a meeting has a steep burden to overcome in order to demonstrate it is reasonable. Here, the PAC found that the school district had not met its burden of demonstrating that advance notice of recording was reasonable. The PAC further found that if the locations of board meetings raised student privacy concerns then the school district is obligated to select a location for meetings where the right to record is not curtailed or to otherwise eliminate the concern (such as by prohibiting students from accessing the learning resource center during meetings).

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