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 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

A public body violated FOIA by failing to comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request. An individual submitted a request via email on Jan. 4, 2017 for a copy of a police report and documents related to a police pursuit that began in East St. Louis on the morning of Dec. 13, 2016. Twelve days after making the request, the requestor had yet to receive a response and requested the PAC review the City’s failure to respond. The City did not respond to the PAC’s first correspondence regarding this matter, but it responded to the PAC’s second correspondence by indicating that the request had been forwarded to the Police and City Attorney. On March 1, 2017, the requestor resubmitted her FOIA request and was informed by the City Manager that he would work with the police department to fulfill her Jan. 4, 2017 request. As of April 18, 2017, the City had not responded to the FOIA request.

The PAC found that the City violated Section 3(d) of FOIA by failing to provide the requested records, to extend the time for its response, or to deny the request in whole or in part within five business days of receiving the 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. 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.

Cassandra Black, IASB Law Clerk

Petitioner Endrew F., a student with autism, attended school in Douglas County from preschool to fourth grade and received special education services through an Individualized Education Program (IEP) during this time. When the District proposed his fifth grade IEP, Endrew’s parents removed him from public school and unilaterally placed him at a private school that specializes in educating students with autism because they did not believe he was making meaningful progress on his IEP goals. During the fall of Endrew’s fifth grade year, the District proposed a new IEP, but parents rejected it claiming that the final IEP proposed by the District did not provide Endrew with a Free Appropriate Public Education (FAPE), as is required by the Individuals with Disabilities Education Act (IDEA). Endrew’s parents filed a complaint seeking reimbursement for private tuition. In response to parents’ claim, an Administrative Law Judge found in favor of the District. The District Court and Tenth Circuit affirmed this decision.

The Supreme Court first addressed the FAPE requirement 35 years ago in Board of Education of Hendricks Hudson Central School District v. Rowley. The Rowley court held that a student has received FAPE if the student’s IEP is “reasonably calculated to enable the child to receive educational benefits.” The Rowley court stated that for students who are receiving instruction in the regular classroom, this would typically require an IEP “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”

The U.S. Supreme Court agreed with the Rowley decision that for students included in the general education environment, an IEP should typically be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” The Court recognized, however, that this standard may not be appropriate for all students with disabilities, and for students not included in the general education setting IDEA requires that the IEP be “appropriately ambitious in light of [the student’s] circumstances.” The Court held that the substantive obligation under IDEA requires a district to offer an “educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” While this standard is significantly more demanding that the “merely more than de minimis” standard applied by the Tenth Circuit, it is less demanding than the parents’ proposed standard that students with disabilities be provided with educational opportunities that are “substantially equal to the opportunities afforded children without disabilities.” The Court declined to elaborate on what “appropriate” progress looks like, stating that this will depend on the unique circumstances of each child. The Court stated that when a court is reviewing the IEP, it must look at whether the IEP is “reasonable,” not whether it is “ideal,” and that deference should continue to be given to school authorities based on the application of expertise and exercise of judgment.

Cassandra Black, IASB Law Clerk

A public body violated FOIA by improperly denying a request under Section 7(1)(d)(i). The requestor requested an Illinois State Police (ISP) field report. ISP responded by denying the request in its entirety under 7(1)(d)(i) of FOIA, claiming that disclosure of the requested information “would interfere with pending or actually and reasonably contemplated law enforcement proceeding[s] conducted by [a] law enforcement agency.” When a public body denies a request claiming statutory exemption, the burden is on the governmental agency to prove that specific documents fit within the statutory exemption.

The PAC found that while ISP’s response to the FOIA included the statutory language of Section 7(1)(d)(i), it did not provide a “detailed factual basis” for its application as is required by Section 9(a). The PAC concluded that ISP did not sustain its burden of demonstrating by clear and convincing evidence that the field report is exempt from disclosure in its entirety.

The PAC ordered ISP to immediately disclose the field report to the requestor. In response to ISP’s claim that the report contains information that is exempt, the PAC stated ISP may redact from the report any “private information” which is exempt under 7(1)(b) and dates of birth which are exempt under Section 7(1)(c), but if ISP redacts any information, it must include a written denial that identifies the basis for each redaction and other requirements of Section 9(a).

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

Cassandra Black, IASB Law Clerk