Recent Court Decisions

A County Sheriff’s Office (Sheriff’s Office) violated FOIA by improperly denying the release of two 9-1-1 recordings in response to two FOIA requests. On April 27, 2017, a reporter requested copies of two 9-1-1 recordings made from the home of a child who had been reported missing and was later found dead. The Sheriff’s Office promptly denied both requests in their entireties, asserting that the voice recordings constituted “biometric identifiers,” which are included in Section 2(c-5)’s definition of “private information” exempt from disclosure. The Sheriff’s Office also denied disclosure of the second 9-1-1 recording based on Section 7(1)(d)(vii), asserting that disclosure could impede the ongoing investigation of the child’s death.

On review, the PAC found that the voice recordings did not constitute “biometric identifiers” because that term is commonly understood to refer to the measurement and analysis of a unique physical or behavioral characteristic that identifies a person. Since the voice recordings did not contain a measurement or analysis of the speaker’s voice (or a “voiceprint”), they were not “biometric identifiers” and thus their disclosure could not be denied under Section 2(c-5).

Regarding the Sheriff’s Office’s Section 7(1)(d)(vii) assertion, the PAC found that the existence of a criminal investigation by itself does not render records relating to the investigation exempt from disclosure. To successfully make this assertion, the Sheriff’s Office would have had to provide a factual basis and “clear and convincing evidence” demonstrating how the disclosure of the 9-1-1 recording would obstruct an ongoing criminal investigation.

The PAC ordered the Sheriff’s Office to immediately disclose the 9-1-1 recordings to the reporter.

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

The City of Rockford (City) violated FOIA by improperly redacting employees’ names from certified payroll records when disclosing them in response to a FOIA request. On May 22, 2017, an individual submitted a request for copies of certified payroll records for a specific City project by a specific City contractor. The City promptly responded by stating the FOIA request was approved in its entirety and by providing copies of the certified payroll records, but the City redacted the contractor’s employees’ names, addresses, social security numbers, and driver’s license numbers from the records. Driver’s license numbers are exempt as “private information” under Section 7(1)(b) of FOIA, and Section 2.10 of FOIA permits a public body to redact contractor’s employees’ addresses, telephone numbers, and social security numbers from certified payroll records submitted to a public body under the Prevailing Wage Act. However, the City erred when it redacted the employees’ names, which are not exempt from disclosure. Moreover, the City had stated the FOIA request was approved in its entirety and it did not accurately state that it had partially denied the FOIA request (by making redactions) nor explain why redactions were made. The PAC ordered the City to immediately disclose the contractor’s employees’ names contained within the requested certified payroll records.

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

A public body violated Section 2(a) of the Open Meetings Act when it improperly relied on Section 2(c)(11) to discuss in closed session matters related to an intergovernmental agreement at its February 20, 2017 meeting. Section 2(a) requires all meetings of public bodies to be open to the public unless the subject of the meeting is covered by one of the limited exceptions under 2(c). Section 2(c)(11) permits public bodies to close a portion of the meeting to discuss “[l]itigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.” If there is no litigation pending, the public body must have reasonable grounds to believe that litigation is more likely than not to be instituted or is close at hand.

The PAC found that during the closed session, the public body did not focus on litigation, but rather focused on its course of action with respect to the intergovernmental agreement, which is outside the scope of the exception. The PAC ordered the public body to make publicly available the closed session verbatim recording of the meeting and take necessary action as soon as practical to comply with the directives of the opinion or initiate administrative review under Section 7.5 of OMA.

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

Cassandra Black, IASB Law Clerk

A public body violated FOIA by improperly denying a request under Section 7(1)(f). The requestor submitted a FOIA request to the Village of Oak Park (Village) asking for “the traffic counts from the roadway monitoring operations conducted on 10/25/16, 10/26/16 for the following roads: Washington Blvd, Madison Street and Jackson Blvd” and “the traffic counts from the roadway monitoring operations conducted on 11/11/16 for Madison Street.” The Village denied the request under Section 7(1)(f), claiming that “the traffic counts are in draft form and have not been publicly released.”

Section 7(1)(f) of FOIA exempts from disclosure “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.” Factual information is not exempt from disclosure unless the information is inextricably intertwined with a deliberative process in a way that its disclosure would reveal the deliberative process.

The PAC found that although the traffic counts being requested were part of a preliminary traffic study, they are purely factual and the public body did not sustain its burden of demonstrating that the traffic counts were inextricably intertwined with a deliberative process or that their disclosure would reveal any aspect of any deliberative process, thereby violating the requirements of FOIA. The public body was directed to take immediate and appropriate action to disclose to the requestor a copy of those portions of the traffic study containing the traffic counts that were requested.

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

Cassandra Black, IASB Law Clerk

A public body violated FOIA by improperly denying a request. A requestor submitted a request to the Illinois Department of Corrections (IDOC) asking for records “sufficient to show the job titles, locations, and numbers of employees in each category which the Department of Corrections considers essential and who would be required to report to work in the event of interruption in state employee pay and the closing of some offices and services.” IDOC denied the request, claiming that “to the extent documents exist, [the documents] are exempt” under Section 7(1)(m) and 7(1)(f), but did not provide a detailed factual explanation supporting its assertion of either exemption.

Under Section 7(1)(m), records are exempt from disclosure when they contain communications of attorneys and provide “[c]ommunications between a public body and an attorney . . . representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public[.]”

Records are exempt under Section 7(1)(f) when they are “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.”

The PAC found IDOC’s response was improper, as the validity of the asserted exemptions could not be determined without confirmation that responsive records exist. Additionally, IDOC did not sustain its burden of demonstrating that the records qualified for exemptions under 7(1)(m) or 7(1)(m). The PAC ordered the public body to immediately disclose the records in response to the FOIA requestor.

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

Cassandra Black, IASB Law Clerk