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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Friday, April 9, 2021

Court Finds Injunction Relieved Public Body From Releasing Records Under FOIA


In 2015, Charles Green submitted a FOIA request to the Chicago Police Department seeking all closed complaint register files (CRs) for all Chicago police officers. After CPD failed to respond to the request, Green filed a lawsuit seeking an order directing CPD to release the requested files. However, the requester's lawsuit was continued, because an injunction entered by another court prohibited CPD from releasing any CR files that were older than four years from the date of any FOIA request. That injunction was later vacated in 2016. In 2020, the circuit court ruled in favor of the requester and ordered CPD to turn over all CR files dated from 1967 to 2011. CPD appealed the decision, arguing that the circuit court improperly ordered CPD to produce CR files that were subject to an injunction at the time that they were requested and that the court erroneously rejected CPD’s claim that producing 48 years of closed CR files would be unduly burdensome. 

On appeal, the appellate court in Green v. Chicago Police Department agreed with CPD that when CPD denied Mr. Green’s FOIA request for CR records in November 2015, it was required to follow the terms of a lawful injunction that prohibited CPD from releasing the records subject to the injunction. Further, the appellate court determined that it was irrelevant whether the injunction was subsequently vacated, because at the time CPD received the FOIA request, CPD was following a lawful injunction to avoid disclosing the CR records. Because the CPD received Mr. Green’s FOIA request for responsive CR records while an injunction was in place, the court concluded that CPD did not improperly withhold the records under FOIA. 

Because the court ruled in CPD's favor on the first issue, it did not address the second argument raised by CPD - that the court should have allowed CPD to raise an unduly burdensome claim as a defense in litigation even if it had not made that claim in response to the FOIA request. Public bodies should make sure they respond within the statutory time frame even if they intend to raise an unduly burdensome claim to avoid an argument that they waived that claim if the requester files a lawsuit. 

Post Authored by Eugene Bolotnikov, Ancel Glink


Wednesday, April 7, 2021

Illinois Governor Approves Election Code Changes Regarding Mail and Curb-Side Voting


The Governor approved the first Public Act of the 102nd General Assembly last week in P.A. 102-001. This new law amends various provisions of the Election Code, including the following:

  • The State Board of Elections is authorized to release federal funds under the Help America Vote Act to local election authorities maintain secure collection sites for mail-in ballots.
  • Election authorities are authorized to establish curb-side voting during early voting and on election day.
  • Election authorities are required to accept any vote by mail ballot, including those with insufficient or no postage. 
  • Election authorities that maintain collection sites for mail-in ballots must ensure the sites are secured by locks that can only be opened by election authority personnel.
  • Election authority personnel must collect all ballots from collection sites at the close of business each day and note the day the ballot was returned. 

The new law authorizes the State Board of Elections to establish guidelines for the security of these collection sites.

Tuesday, April 6, 2021

Court Questions Claim that Review of 28,000 Records is Unduly Burdensome in FOIA Case


In 2018, a requestor submitted a FOIA request to the Chicago Board of Education seeking documents related to the requestor’s racial discrimination claims made between 1999 and 2005. After identifying approximately 28,000 pages of records that would need to be reviewed for potential exemptions, the Board asked the requestor to narrow his request, which is permitted by FOIA. When the requestor refused, the Board denied the FOIA request as unduly burdensome. The requester sued, and the circuit court ruled in favor of the Board. The requestor then appealed.  

In Greer v. Board of Education of the City of Chicago, the First District Appellate Court reversed the ruling in favor of the Board, finding that the "unduly burdensome" exemption was not grounds for summary judgment because there were issues of material fact regarding whether the requestor’s request was unduly burdensome. Since the Board had already identified records that were apparently responsive to the FOIA request, the appellate court noted that the Board would not face a great burden identifying responsive records. The appellate court also questioned the Board’s assertion that redacting exempt information would take 86 days. The appellate court also disagreed with the Board’s claim that its burden of reviewing the 28,000 records outweighed the public’s interest in the requestor’s racial discrimination claims, noting that allegations of racial discrimination by public bodies, even those pertaining to a single employee, inherently constitutes a matter of public concern in which the public has a substantial interest. 

Because there were issues of material fact that left room for doubt on the Board's claim that it would be unduly burdensome to review 28,000 records, the court reversed the circuit court's ruling and sent the case back to the circuit court, ordering the Board to examine the 28,000 responsive documents to identify those that might be exempt.

This case is concerning to public bodies on what constitutes "unduly burdensome" - if reviewing 28,000 records for applicable exemptions and redactions isn't unduly burdensome, it makes you wonder what is. Many readers know we have reported on a number of "unduly burdensome" cases and PAC opinions in the past, and this case may just be an outlier. Public bodies should make sure they provide an estimate of the number of records that would require review in the initial response to a requester asking the requester to narrow the request and estimate the manpower necessary to tackle that review - although that didn't seem to make a difference in this case, it has been relevant in other cases and PAC opinions on the "unduly burdensome" issue.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Monday, April 5, 2021

U.S. Supreme Court Finds First Amendment Case Against Trump "Moot"


Over the past few years, we have kept readers informed about cases involving elected officials and their use of social media. You may recall the case in Virginia where a court of appeals determined that a county commissioner's blocking of users from her Facebook page was a First Amendment violation. The most talked about case involving an elected official's use of social media, however, was the case filed by the Knight First Amendment Institute against then-President Trump alleging that his blocking of users who criticized him on Twitter was a violation of the First Amendment. That case made its way to the Second Circuit Court of Appeals which issued a ruling in 2019 finding then-President Trump in violation of the First Amendment. We reported on that ruling here. We also reported when then-President Trump appealed the court of appeals ruling to the U.S. Supreme Court. 

The Supreme Court just issued a ruling today sending the case back to the Second Circuit with instructions to dismiss the case as "moot." The case (now named Joseph R. Biden, Jr. v. Knight First Amendment Institute at Columbia University, et al. because of the change in administration) is a short read. The U.S. Supreme Court issued a two sentence opinion vacating the judgment of the Second Circuit and remanding it back to the court of appeals with instructions to dismiss the case as moot. Justice Thomas filed a separate concurring opinion (12 pages), arguing that although he agreed that the case should be vacated as moot because of the change in administration, he questioned whether the First Amendment applies to a platform where a private company (in this case, Twitter) has "unbridled control" of user accounts. 

What's interesting is that after the change in administration, both sides (the Department of Justice and the Knight First Amendment Institute) had argued that the U.S. Supreme Court should declare the case "moot" but for different reasons. The DOJ argued the case was moot because of the change in administration. The Knight First Amendment Institute also argued the case was moot but because Twitter had permanently banned Trump from its platform. 

Thursday, April 1, 2021

Podcast Ep. 51: Parliamentary Procedures for Newly Elected Officials


Ancel Glink has just released Episode 51 of its Quorum Forum Podcast today: "Parliamentary Procedures for Newly Elected Officials" just in time for next week's municipal elections. More information below:

Episode 51: Parliamentary Procedures for Newly Elected Officials

Newly-elected and not-so-newly elected officials are preparing for business after the local government elections. That’s why Ancel Glink’s Steve Mahrt and Eugene Bolotnikov joined the Illinois Association of County Board Members to review parliamentary procedures and other helpful tips for orderly local government meetings. 

If you prefer video to audio, you can watch the training on YouTube here.

What strategies does your organization use to promote civility at meetings? Email us at podcast@ancelglink.com!

Tuesday, March 30, 2021

Food Truck Freedom Bill Introduced in General Assembly


The Illinois General Assembly recently introduced HB 3509, called the Food Truck Freedom Act. If passed, the bill would prohibit municipalities from requiring food truck businesses to obtain multiple licenses from the municipality regardless of how many trucks the business operates in that municipality. The bill would also require municipalities to recognize reciprocal business licenses issued to food truck businesses by different municipalities or local health departments. Additionally, the bill would prohibit municipalities or local health departments from imposing additional license qualification requirements on food truck businesses before issuing licenses. 

For initial business licenses, the bill would allow municipalities or local health department to charge a licensing fee to food truck businesses, but the fee can only reimburse the municipality for the actual cost of processing the business license. Subject to certain exceptions, the bill also prohibits municipalities from requiring a food truck business to pay any fee or obtain any permit for a special event on private property, regardless of whether the event is open or closed to the public. 

Please stay tuned for more updates as we continue monitoring HB 3509. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, March 25, 2021

Bill Would Repeal Rent Control Preemption Act


Earlier this week, the House Committee on Housing advanced a bill that would allow units of local government to implement measures regarding rent control, including imposing caps on rent prices. If passed, HB 0116 would repeal the Rent Control Preemption Act, which currently prohibits every municipality from regulating or controlling the amount of rent charged for leasing private residential or commercial properties. Please stay tuned for more updates about this bill.  

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, March 23, 2021

Court Upholds Home Rule City's Water Billing Ordinance


An Appellate Court recently upheld a municipality's water billing ordinance in Souza v. City of West Chicago.

In 2011, West Chicago contracted with Water Resources, Inc. to replace residential water meters and update meter equipment. After some customers experienced years of deficient, inaccurate, and/or missing water meter readings, the City terminated its contract with Water Resources in 2016. 

In 2019, two individuals filed a class action lawsuit against the City and Water Resources alleging that the City engaged in unlawful billing practices by charging customers for water and sewer services outside of the 12-month period prescribed by the water-utility billing provision in state statute (specifically, section 65 ILCS 5/11-150-2 of the Illinois Municipal Code). While the lawsuit was ongoing, the City amended its local water billing ordinance so that the local ordinance: (1) would control over state statute; (2) apply retroactively to any and all billed or unbilled charges incurred for water usage prior to and subsequent to the amended ordinance’s effective date; and (3) apply to all causes of action that have accrued, will accrue or are currently pending. 

The circuit court ruled against the water customers, finding that the City’s amended water billing ordinance was a valid exercise of its home rule powers.

The customers appealed, and the Second District Appellate Court upheld the ruling in favor of the City. Specifically, the appellate court noted that the City’s ordinance was a valid exercise of its home rule powers to regulate an area of vital local interest (the funding and operation of the City’s water utility system). The court rejected the customers' argument that state statute "preempted" the local ordinance finding no preemption language in the statute. 

The appellate court also rejected the customers' argument that applying the ordinance retroactively deprived them of a vested right. 

Finally, the appellate court rejected the customers’ claim that they were entitled to recover economic damages for all service charges wrongfully billed and/or collected by the City because of Water Resources' breach of its contract with the City. The appellate court found that the customers were not parties or third-party beneficiaries to the contract so could not bring a breach of contract claim against Water Resources.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Thursday, March 18, 2021

Court Rules in Favor of School District in Residency Case


An Illinois Appellate Court recently ruled in favor of the school district in a residency case, finding that a student was not a legal resident of the district. Gwozdz v. Board of Education of Park Ridge-Niles School District No. 64.

During the 2017-18 school year, parents enrolled their daughter as a seventh-grade student at a middle school located within the school district. The parents submitted documents identifying the student’s place of residence at a one-bedroom apartment in the district. According to the court opinion, the district became suspicious of the student’s residency during the verification process because the family listed two properties—a single family home outside of the district’s boundaries and the one-bedroom apartment within the school district. The opinion also noted that the district had found the lease “odd” because it was a lease from the family to itself, it was a 10-year lease, and the rent level never changed. 

Because of its suspicions, the district hired a private investigator to conduct surveillance of the family. The investigator observed that the family stayed at the out-of-district residence late in the evening and would leave the house early the next morning. The investigator also “spot-checked” the apartment building and never found the family’s vehicles at that location. After receiving the investigator’s report, the school district issued a letter informing the parents of its determination that the student was not a district resident. In response, the parents requested a hearing in front of the school board’s hearing officer to review the district’s determination. 

At the hearing, the father testified that the family owned the building within the school district and operated a flower business on the first floor. The second floor of the building consisted of eight apartments, seven of which were rented to others. The family kept a one-bedroom apartment to themselves and listed the apartment as its primary residence since December of 2012. In support of residency, the family also submitted other documents, including the student’s vaccination record, vehicle registrations and the student’s library card, all of which listed the apartment’s address. 

In finding that the student did not reside in the school district, the hearing officer noted the unlikelihood that the family lived in a one-bedroom, one-bath apartment, when there was a larger single family home outside of the school district. The hearing officer also found that the family’s testimony was not credible in light of the investigator’s report and pointed to evidence that the student was enrolled in a different school district during the 2015-16 school year, even though the family testified they moved to the apartment in 2012. As a result, the hearing officer upheld the school district’s determination. The circuit court affirmed the determination and the parents appealed. 

On appeal, the Court ruled in favor of the school board. Taking all the facts presented at the hearing together, the Court concluded that the parents intended for the single family home outside of the district to act as a “home base” for day-to-day care for the child. As a result, the Court held that the student did not reside in the school district and ordered the family to pay tuition for the 2017-18 school year.

Post Authored by Rain Montero & Julie Tappendorf, Ancel Glink


Wednesday, March 17, 2021

Court Upholds Use of "Deliberative Process" FOIA Exemption


An Appellate Court recently interpreted the "deliberative process" (sometimes known as the draft document) exception in section 7(1)(f) of the Freedom of Information Act in Fisher v. Office of the Illinois Attorney General. In this case, the court found that a public body (in this case, the Attorney General) did not violate FOIA in denying a request for certain records it claimed were exempt under that exception.

In 2012, the Attorney General (AG) filed a lawsuit against several Cathode Ray Tube (CRT) manufacturers, alleging they conspired to fix prices on certain products resulting in overcharges to Illinois consumers. Ultimately, the AG entered into settlement agreements with all of the manufacturers. In April 2019, an individual representing several clients that submitted claims as part of the CRT settlement, made a FOIA request to the AG, seeking communications between the AG and KCC Class Action Services LLC related to the CRT settlement. The AG denied the FOIA request, claiming that the communications were exempt from disclosure under FOIA’s "deliberative process" exemption in FOIA section 7(1)(f). The requester then sued the AG, alleging that the AG violated FOIA by improperly withholding the requested communications under the deliberative process exemption. The circuit court upheld the AG's denial of the FOAI request and the requester appealed. 

The Appellate Court agreed with the circuit court and also upheld the AG's use of the deliberative process exemption to deny the FOIA request. To exempt records under FOIA’s deliberative process exemption, the Appellate Court clarified that responsive materials must be both (1) inter or intra agency and (2) predecisional and deliberative. 

As to the first requirement, the court concluded that the requested communications between the AG and KCC were intra-agency materials under FOIA’s deliberative process exemption. As AG’s outside consultant, KCC provided the AG with analyses and recommendations regarding the distribution of settlement proceeds, which the AG relied on to create the final settlement distribution plan, and KCC performed essentially the same function in the AG's deliberative process as the AG would have performed if it had chosen to perform the preliminary review of each claim itself. 

Regarding the second requirement, the court determined that the records were predecisional because they were required in order for the AG to adopt and submit its final settlement plan in the CRT lawsuit. The court also determined that the records were  deliberative because the communications between the AG and KCC were related to the process that the AG engaged in to formulate its policies and to create a final settlement plan in the CRT litigation. In this case, AG had retained KCC as an outside consultant to make determinations, subject to the AG approval, regarding which claimants satisfied requirements for participation in the settlement. To that end, KCC reviewed claims and made recommendations to the AG that it used in its final settlement determinations.

This case provides some helpful guidance to public bodies in how the courts will apply the "deliberative process" exemption in section 7(1)(f) of FOIA, and also some insight into the Attorney General's view of this exemption, given that the public body in this case was the AG.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink


Tuesday, March 16, 2021

Court Finds Term Limits Statute Constitutional


 In Buchanan v. Jones, an Appellate Court upheld the constitutionality of a 2019 state statute as applied to a 2016 referendum that limited the terms of office for individuals elected to the office of village president.

On November 8, 2016, a majority of voters in a municipality who voted in the general election approved the following referendum:

Shall the terms of office of those persons elected to the office of Village President in the Village of Broadview, at the April 4, 2017 consolidated election, and each election for said office thereafter, be limited such that no person shall be eligible to seek election or hold the office of Village President where that person has been previously elected to the office of Village President of the Village of Broadview for two consecutive full four year terms?

On July 19, 2019, the General Assembly amended the Illinois Municipal Code to add Section 3.1-10-17, which provides, in relevant part, that:

(a) The imposition of term limits by referendum, ordinance, or otherwise must be prospective. Elective office held prior to the effective date of any term limit imposed by a municipality shall not prohibit a person otherwise eligible from running for or holding elective office in that municipality. Term limits imposed in a manner inconsistent with this Section remain valid prospectively, but are invalid as they apply to service prior to the enactment of the term limits.

***

(d) This Section applies to all term limits imposed by a municipality by referendum, ordinance, or otherwise passed on or after November 8, 2016.” 65 ILCS 5/3.1-10-17.

A candidate for the office of village president filed nomination papers for the April 6, 2021 municipal election. A registered voter filed objections to the candidate's nomination papers with the Municipal Officers Electoral Board. Specifically, the objector argued that the candidate was not eligible to seek election to or hold the office of village president because he had previously been elected to that office for two consecutive full four-year terms and was barred from running again due to the 2016 referendum.

On January 26, 2021, the Electoral Board dismissed the objection and ordered the candidate's name to appear on the April 6, 2021 ballot. The Electoral Board reasoned that based on the language of the 2019 statute, any term that the candidate served as village president prior to November 8, 2016 should not be included in determining his eligibility to run for the office of village president in the April 6, 2021 election. The circuit court upheld the Board’s decision and Buchanan appealed.

On appeal, the objector argued that the 2019 statute was unconstitutional as applied to the 2016 referendum because it nullified the past results of a valid election, which established term limits for individuals holding the office of village president and determined who was ineligible to seek election to or hold that office. 

The Appellate Court rejected the objector's argument, finding that the 2016 referendum was silent as to whether service as village president prior to the referendum’s adoption should be considered in calculating consecutive terms. The Court reasoned that the new statute only places a limitation on the way that term limits are calculated in elections taking place after July 19, 2019, the effective date of the statute. As a result, the Court held that the statute was not unconstitutional as applied to the 2016 referendum, and the candidate was eligible to run for the office of village president.

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink

Monday, March 15, 2021

Court Rules in Public Body's Favor in FOIA Case Brought by Inmate


In 2015, an inmate filed two substantially identical FOIA requests with the Chicago Police Department asking the CPD to release records regarding the murder of an individual for which the inmate was prosecuted and convicted. After CPD initially failed to respond to both requests, the inmate sued CPD alleging that CPD had violated FOIA by failing to respond to his requests. After the trial court conducted an in camera inspection of the records produced to the plaintiff and confirmed that CPD conducted a reasonably diligent search for responsive records, the court ruled in CPD’s favor, finding that the inmate’s lawsuit was "moot" because CPD had already produced all non-exempt public records responsive to the inmate’s requests. The inmate appealed.

In Love v. City of Chicago, the First District Appellate Court also ruled in favor of the CPD. First, the appellate court rejected the inmate’s contention that CPD failed to produced certain records, finding no evidence that the CPD’s search was inadequate. Second, the court rejected the inmate's argument that CPD violated FOIA by not producing an index for certain records, finding that public bodies are not obligated to produce an index in response to a FOIA request outside of a court order which did not exist in this case. Finally, the court also rejected the inmate’s request to conduct his own "in camera" inspection of CPD’s records, noting that FOIA only allows a court to conduct in camera inspection of records when appropriate to determine whether records may be withheld under applicable FOIA provisions. 

Post Authored by Eugene Bolotnikov, Ancel Glink