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Wednesday, July 18, 2018

City in Violation of FOIA for Redacting PINs

In its 9th binding opinion for 2018, the PAC found a public body in violation of FOIA for redacting the Parcel Identification Numbers (PINs) from records released in response to the FOIA request. PAC Op. 18-009.

A FOIA request was filed with a Chicago agency requesting records relating to variances granted under the City's shared housing ordinance. The request specifically asked that the records include the PINs for each parcel. The City responded to the FOIA by providing the requested records, but redacted the PINs, citing the "private information" exception under 7(1)(b) of FOIA. 

The requester appealed to the PAC, and the PAC ruled against the public body, rejecting its argument that the PINs for individual parcels are "unique identifiers" under 7(1)(b) of FOIA. The PAC noted that the phrase "unique identifier" is intended to apply to information about people (such as a social security number), and not information about property. The PAC also noted that PINs are publicly available information.  The PAC also rejected the City's argument that release of the PINs would constitute an unwarranted invasion of personal privacy under 7(1)(c) of FOIA. The PAC determined that the interest in release of information about homes that are used as vacation rentals in Chicago outweighed any interest in the property owners in keeping that information private.

Post authored by Julie Tappendorf

Monday, July 16, 2018

Zoning Lawsuit Bill Signed By Governor

We previously reported on HB 4711, which had passed both houses last month. That bill proposed to amend the municipal, county, and township zoning statutes to make it clear that the Adjoining Landowner Act does not provide a cause of action to individuals to sue the government to challenge zoning decisions unless the government is the owner of the property subject of the zoning challenge. You can read our previous post here

We wanted to update you to report that the Governor has signed this legislation into law as PA 100-595. The relevant language that was added to the municipal zoning statute is as follows:
Except in relation to municipality-owned property, this Section does not authorize any suit against a municipality or its officials for any act relating to the administration, enforcement, or implementation of this Division or any ordinance, resolution, or other regulation adopted pursuant to this Division.
There are a number of cases that had already held that the Adjoining Landowner Act does not provide a cause of action against the government (except as property owner), and this new law confirms that.

The legislation is effective June 29, 2018.

Post Authored by Julie Tappendorf

Friday, July 13, 2018

Upcoming Webcast: Zoning Hearings

Webcast— Rules of the Game: A Framework for Fair & Effective Zoning Hearings

Don't miss this upcoming webcast hosted by the Planning and Law Division of the American Planning Association titled Rules of the Game: A Framework for Fair & Effective Zoning Hearings on Thursday, July 26, 2018 from 1:00 to 2:30 p.m. EDT.  Register here

This webinar will cover the legal requirements for public hearings, including constitutional due process considerations, and provide tips on how to more effectively manage these hearings.  Speakers include Ancel Glink attorneys David Silverman and Kurt Asprooth.

Details are as follows:

July 26, 2018

1:00 – 2:30 PM Eastern (noon - 1:30 PM Central)

CM | 1.50 | Law
CLE 1.50 through Illinois State Bar

Wednesday, July 11, 2018

Assessor Ordered to Release Assessment Records to Tribune

The Tribune filed a FOIA request with the Cook County Assessor's Office asking for records relating to the valuation of residential, commercial, and industrial property in Cook County for purposes of taxation. Specifically, the Tribune asked the assessor to produce the spreadsheets used in the assessment of commercial and industrial properties and also that it produce residential property valuation reports. The assessor’s office denied the FOIA request, citing the exemption under 7(1)(f) of FOIA. The assessor's office argued that the records were subject to the "deliberative process" exemption under FOIA. 

The trial court ruled in favor of the Tribune, finding that the requested documents “do not in any way reveal the subjective personal position or opinion of any individual in the [Assessor’s Office]” such that the preliminary records exemption would apply. The trial court further found that none of the documents revealed “any debate” or “deliberation,” but instead found that the documents “contain factual information and the results of the [Assessor’s Office’s] valuation which are not covered under the deliberative privilege.”

The assessor appealed, and the appellate court affirmed its ruling in Tribune v. Cook County Assessor's Office, 2018 IL App (1st) 170455. The appellate court went through the analysis of the "deliberative process" exemption. First, the court determined that the records were final, and not preliminary. Next, the court held that the records are not ones in which opinions are expressed or policies are actions are formulated - instead, the court found that the requested records were factual in nature, and consist of the results of the assessment process. The court stated the standard for applying the "deliberative process" exception as follows:
In order to qualify for the deliberative process exemption, a document must be both predecisional in the sense that it is actually antecedent to the adoption of an agency policy, and deliberative in the sense that it is actually related to the process by which policies are formulated....The policy reason for the deliberative process exemption is to encourage candid debates within agencies. The government is entitled to withhold documents that reflect the agency’s give-and-take leading up to its final decisions.
The court further stated that "[p]urely factual material must be disclosed under FOIA once a final decision has been made, unless the factual material is inextricably intertwined with the predecisional and deliberative discussions." Because the court found that the information requested by the Tribune is critical for the public to understand how they are being taxed, the court ordered the assessor to release the requested records to the Tribune. The court also upheld the trial court's award of the Tribune's attorneys' fees.

Tuesday, July 10, 2018

Public Body Violates FOIA in Not Responding to FOIA Requests

In its 6th binding opinion of 2018, the PAC found a public body in violation for failing to respond to a FOIA request. PAC Op. 18-006. The requester had filed three FOIA requests for various records including minutes and the recording of a personnel committee meeting, copies of the personnel handbook and policies for fire department personnel, and minutes of the monthly fire department meetings. According to the requester, the village failed to respond to any of these requests, and he filed a request for review with the PAC. The PAC found the public body in violation for failing to respond to the FOIA requests and for not cooperating with the PAC in the request for review process.

Monday, July 9, 2018

New Quorum Forum Podcast Released - Defending Police Actions

Ancel Glink released its fifth episode of its Quorum Forum podcast last week. In Episode 5, Ancel Glink litigation attorneys Tom DiCianni and Christy Michaelson discuss the challenges local governments face when defending allegations of police misconduct. Christy provides updates on police legislation, and Tom analyzes how technology and media attention affect the defense of high-profile police cases.

You can listen to Episode 5 (and all other episodes) here.

Monday, July 2, 2018

Public Body Violates FOIA In Denying "Repeated Request" For Same Records

It's been more than 3 months since the Illinois Attorney General PAC office issued a binding opinion, but the wait is over. In PAC Op. 18-007, the PAC found a public body in violation of FOIA for improperly denying a second FOIA request for the same records that had been requested in a previous FOIA request.

A requester filed a FOIA request with the Illinois Department of Corrections asking for records concerning the Illinois Impact Incarceration Program. IDOC provided some records, and provided a link to other records available on IDOC's website. Three months later, the requester filed a complaint with the PAC office. The PAC notified the requester that the complaint was too late (it wasn't filed within 60 days after the denial) but suggested to the requester that she file a second FOIA request, thus triggering a new 60 day appeal period.

Based on the PAC's advice, the requester filed a second request with IDOC asking for the same records. IDOC responded that section 3(g) does not require a public body to respond to repeated requests from the same person for the same records, and that it had conducted a search for the requested records and had provided the records it found through its search.

The PAC examined the language of 3(g) which allows a public body to deny subsequent requests for the same records submitted by the same person. The PAC determined that because IDOC did not provide sufficient support that it performed a thorough search and provided all relevant records in response to the first request, it could not deny the second request filed by the same person for the same records. 

It is unclear from reading this opinion how or in what manner IDOC failed to comply with FOIA. IDOC responded to the first request for records by either providing the responsive records or referring the requester to the website link where records could be found. When the second request was filed by the same person for the same records, IDOC denied it under 3(g) on the basis that IDOC had already responded to the same request and provided records previously. It appears that the PAC expects IDOC (and presumably all public bodies) to "prove a negative" - i.e., somehow establish to the PAC's satisfaction that the public body absolutely, positively, and without any doubt, has no other records responsive to the request beyond those that had been previously provided. I don't know how a public body can meet that standard, or why IDOC's initial response and provision of records to the requester wasn't enough. As for the PAC's advice to keep filing requests for the same information,  causing public bodies to repeatedly respond to requests for the same records? That's what section 3(g) was intended to avoid.

Post Authored by Julie Tappendorf

Thursday, June 28, 2018

Supreme Court Issues Ruling in "Fair Share" Union Fee Challenge

The U.S. Supreme Court issued its long anticipated ruling in the Janus v. AFSCME case involving a challenge to the "fair share" requirement that requires payment of fees by employees who are not members of the union. The Supreme Court ruled in favor of the plaintiff, finding the state of Illinois' requirement that non-consenting public-sector employees pay the fair share fee violates the employees' First Amendment rights. 

To read more about this ruling and find out how it affects local government employers in Illinois, check out our post on Ancel Glink's employment law blog The Workplace Report with Ancel Glink, which you can find here.  

You can read the Court's opinion here.

Tuesday, June 26, 2018

Take it to the Bank! New Podcast Released

In a new episode of Quorom Forum (Ancel Glink's podcast), Ancel Glink’s Brent Denzin addresses blighted, vacant and abandoned properties. Brent discusses how land banks create a solution for community blight.  You can listen to this podcast episode here

A land bank is an intergovernmental entity that’s tasked with acquiring, managing, and disposing of property. Land banks exist in different forms in every state. Illinois does not have a state statute that enables land banks; they currently exist as a home rule unit of government collaborating with non-home rule units. This is especially helpful, because home rule units can use their powers on behalf of the land bank, and thus the entity is not restrained by non-home rule powers.

Land banks utilize many areas of expertise in order to legally and efficiently acquire these properties, including economic development, real estate acquisition, and public works. These areas of expertise are consolidated into one land bank that is able to work on behalf of a wide area of municipalities or counties. The ability to pool resources among multiple local governmental entities is one of the main benefits of land banks.

Once the property is in the land bank, it shifts to asset managers. Asset managers that work for the land bank are constantly driving around, assessing the properties and looking at conditions. The asset managers try to figure out how to secure the properties, maintain the lawns, etc. At the same time, the land bank has inside real estate staff or outside realtors looking to sell the property who are going through the same process as someone would with any other property with clean title.

Even if a land bank does not include a county, the land bank will have to work cooperatively with their county because counties have a tax trustee role and can go into court and file tax petitions for tax delinquent properties. Usually the back taxes on a property is what causes it to become blighted and deteriorated, so this power to acquire title is important for a land bank. Overall, land banks are valuable tools that tackle community deterioration and blight and can be formed any time under the Illinois Intergovernmental Cooperation Act. 

Learn more about landbanks or listen to our other Podcast episodes by visiting our Quorum Forum website at http://quorumforum.ancelglink.com

Monday, June 25, 2018

South Dakota v. Wayfair: Not the Final Word on Internet Sales Tax

UPDATED 6/27/18 (see bold)

On June 21, 2018, the United States Supreme Court issued a ruling in the case South Dakota v. Wayfair that has been hailed as a landmark decision regarding the ability for states to tax interstate transactions.  While it is a very important decision that overturned decades old precedent, there are three reasons why it is not the final word on the authority for states to tax the sale of goods over the Internet.

It is an Incomplete Result

First, the case is a narrow decision that only addresses part of the analysis required to approve the taxation of interstate sales.  The basic legal question is whether a state’s assessment of taxes on out-of-state transactions substantially burdens interstate commerce.  Under the U.S. Constitution, only the federal government has the power to regulate interstate commerce.  As a result, the Constitution implicitly prohibits state laws which either discriminate against or substantially burden interstate commerce.  For state tax laws to be approved under these guidelines, the U.S. Supreme Court has said the tax must:

(1) apply to an activity with a substantial nexus with the taxing State,
(2) be fairly apportioned,
(3) not discriminate against interstate commerce, and
(4) be fairly related to the services the State provides.

The reason the Wayfair case is so important is because for 50 years no state tax that applied to out-of-state sales could get past the first test.  Previously, to meet that first test (the company has a substantial nexus to the state levying the tax), it had to have a physical presence in that state.  In Wayfair, a 5-4 majority of the Court decided that a physical presence is no longer required to satisfy the substantial nexus test.  That is the important but limited decision made by the Court.

The Court did not reach a decision on the final three factors because the underlying South Dakota courts did not have a chance yet to evaluate those questions. So, the case goes back to the lower courts to determine if the plan satisfies the remaining tests so that South Dakota actually can levy sales tax against out-of-state sales.

Nevertheless, the Court made some important observations.  The majority decision expressed concern for how interstate taxation could burden startups and small businesses and questions whether such companies could have a substantial nexus to the state if they do not engage in a significant amount of commerce in the state.  The Court favorably commented on the South Dakota tax plan under review in this case – that plan restricts the application of sales tax to out-of-state companies that have at least $100,000 in sales per year or more than 200 separate transactions per year with state residents.  The Court also indicated that the ease with which companies could comply with a state’s taxing scheme would weigh on whether it created a substantial burden on interstate commerce.  South Dakota and more than twenty other states have adopted the Streamlined Sales and Use Tax Agreement, which is designed to make it much easier for out-of-state retailers to comply with an Internet tax program.

Illinois has no Internet Tax Law

Second, Wayfair only addresses a South Dakota state law.  Even if the case had gone further and approved the tax plan implemented by South Dakota, Illinois does not have a parallel tax law.  Before Illinois can levy taxes against Internet sales it would have to amend its current sales tax laws.  As we know, the General Assembly has a difficult time reaching an agreement on such important issues.  In addition, Illinois is not one of the states to adopt the Streamlined Sales and Use Tax Agreement.  So, before Illinois and local governments could benefit from the holding in Wayfair, the General Assembly would have to take action in a way which complies with the Commerce Clause.

The Fiscal Year 2019 Budget which was adopted as Public Act 100-0587 does make amendments to the Use Tax Act and Service Use Tax Act.  The amendments are designed to mimic the tax regulations on out-of-state purchases adopted in South Dakota.  Currently, the amendments only authorize the collection of the State Use Tax and not any local use tax.  The amendments are not designed to become effective until October 1, 2018.  Nonetheless, the Illinois sales tax paradigm remains different from South Dakota’s because Illinois is not a party to the Streamlined Sales and Use Tax Agreement.

The Federal Government Can Preempt the Field

Third, as mentioned above, the federal government has exclusive authority to regulate interstate commerce.  As the Court states, “when Congress exercises its power to regulate commerce by enacting legislation, the legislation controls.”  So, the federal government could preempt a patchwork of different state Internet tax laws by adopting comprehensive legislation to govern the field.  To-date, Congress has been unable to reach an agreement on this issue.  Various versions of the Main Street Fairness Act, designed to place local businesses on a level playing field with Internet businesses, have been debated for several years with no action – the very motivation for South Dakota to adopt its plan in the first place.  Some people have speculated that the Wayfair decision will jump start the legislative process and result in a nationwide sales tax program.  Only time will tell.

Post authored by Adam Simon, Ancel Glink

Friday, June 22, 2018

Employee's Disciplinary Records Exempt Under FOIA

In a recent appellate court decision, an Illinois court upheld a municipality's denial of a FOIA request asking for the "disciplinary history" for a city employee. Johnson v. Joliet Police Department, 2018 IL App (3d) 170726.

The requester had asked for the disciplinary history for a city employee. The city denied the request, citing section 8 of the Personnel Records Review Act that prohibits the release of disciplinary records of a government employee that are more than 4 years old, and that it had no disciplinary records for the period within the prior 4 years. The requester sued, arguing that the statute does not apply to FOIA requests. 

The circuit court ruled in the city's favor and the requester appealed. The appellate court agreed with the circuit court, finding the requested records expressly exempt from FOIA under section 7.5(q) of FOIA that states that records prohibited from release under the Personnel Records Review Act are exempt from FOIA. The court distinguished between citizen complaints (that depending on the nature of the complaint may not be exempt) and disciplinary records (which are expressly exempt from FOIA).

Monday, June 18, 2018

Federal FOIA Does Not Authorize Lawsuits Against Individual Government Employees

A federal circuit court of appeals ruled in favor of a government agency in a lawsuit challenging the agency's response to a request under FOIA for certain government records. Henson v. Department of Health and Human Services (7th Cir. June 15, 2018).

First, the court held that the federal FOIA does not provide a cause of action against individual employees of the agency. The court noted that the federal FOIA gives jurisdiction to the courts to order the agency to produce agency records, and an individual employee is not an "agency" defined by the statute. Second, the court found that the agency had conducted an adequate and reasonable search of its records, and established that it made a good faith effort to conduct a search for the requested records. Finally, the court determined that the agency properly withheld or redacted documents under the statute's exemptions.