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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

Thursday, May 18, 2017

Illinois Supreme Court Rules IHSA Not Subject to FOIA

A couple of months ago, we reported that the Illinois Supreme Court was hearing oral arguments in the appeal by the Better Government Association (BGA) of a court decision that ruled against the BGA in a FOIA case. Specifically, the BGA had argued that the Illinois High School Association was a "public body" subject to FOIA. The circuit and appellate courts disagreed, finding that the IHSA was not subject to FOIA. 

Today, the Illinois Supreme Court issued its ruling upholding these rulings, agreeing that the IHSA is not subject to FOIA.  BGA v. IHSA, 2017 IL 121124. This ruling will provide helpful guidance to both public bodies and non-governmental organizations as to how the Illinois Supreme Court interprets "public body," and specifically what constitutes a "subsidiary body" and a "governmental function" under FOIA.

The Court applied the "test" set out in to earlier cases that interpreted "subsidiary body" for purposes of the Open Meetings Act. Hopf and Rockford Newspapers. That test applies multiple factors to determine the independence of the entity or organization from the governmental body. That test requires the court to look at three factors:

1.  whether the entity has a legal existence independent of government resolution
2.  the nature of the functions performed by the entity; 
3.  the extent to which the entity is publicly funded; and
4.  the degree of government control exerted over the entity.

Applying these factors, the Court found that the IHSA was not a subsidiary body - in fact, it pointed out that the BGA failed to identify any particular public body to which the IHSA was subsidiary.

The Court also rejected the BGA's argument that the IHSA performed a governmental function for public bodies that would make its records subject to FOIA. 

Post Authored by Julie Tappendorf

PAC Finds 3 Websites Are Not “News Media” Under FOIA

We reported last week on an advisory opinion from the Public Access Counselor of the Attorney General (PAC) that found a local blog to be a member of the “news media’ under FOIA.  A reader of this blog forwarded two other recent advisory opinions where the PAC found websites were not be members of the “news media." We wanted to share these advisory opinions because they further guidance to public bodies on the factors they should consider when determining if a blog or other website functions like a member of the “news media” for purposes of FOIA.

In 2016 PAC 4469, a municipality had deemed two websites to be recurrent requesters under FOIA. The websites claimed they were exempt from the "recurrent requester" provision of FOIA because they were news media since they regularly published findings from FOIA requests with commentary for residents. The websites argued they were one of the only ways for residents to obtain this type of news because there was no local newspaper in the area. The websites furnished copies of their postings, a copy of press credentials issued to their publisher, and documentation that their publisher had a degree in mass communications as evidence that they should be considered part of the “news media.”

The municipality rejected the websites' arguments after viewing the websites’ credentials and finding that they were not members of the “news media” under Section 2(f) of FOIA, so were not exempt from the definition of “recurrent requester” under Section 2(g) of FOIA.

The PAC held that, in order for a self-published website to be considered “news media” under FOIA, the website must do more than simply disseminate information, stating its reasoning as follows:

Merely disseminating information or criticism electronically through a website, or via e-mail, does not meet the statutory definition of “news media.” If it did, then any person who chose to post an opinion or comment on a matter of public interest electronically would become a news medium, which was clearly not the intent of the General Assembly when it enacted the exception.

The PAC also reiterated the rule that an individual or entity that self-publishes information on the internet must demonstrate some adherence to recognized journalistic standards such as editorial oversight or the creation of original content in order to be considered “news media” under FOIA.

The PAC noted that the websites’ content consisted of links to public records obtained through FOIA requests and court files, and links to other news publications.  The PAC also cited the fact that the websites did not post original content, nor did they credit particular authors for the material that was posted.  Due to the lack of editorial oversight and original content, the PAC found that the websites did not resemble traditional news outlets. The PAC also found that the press credentials obtained by the websites’ publisher did not demonstrate a connection with traditional news media, and that the publisher’s degree in mass communications did not, by itself, demonstrate that the publisher was a part of a news outlet.  As such, the PAC concluded that the websites were not members of the “news media” under FOIA and were not exempt from being designated as recurrent requester.

In 2015 PAC 34653, the PAC found a crime mapping website was also not a member of the “news media” under FOIA. The website had requested that a county sheriff’s office send the website crime data on a daily basis.  The county sheriff refused, but offered to send the website crime data on a monthly basis instead.  The website declined, and began submitting FOIA requests on a daily basis.  Because of these numerous requests, the sheriff’s office designated the website as a recurrent requester.  The website appealed to the PAC arguing that they were a member of the “news media” exempt from being classified as a recurrent requester.

The website claimed it provided highly localized crime news data from a variety of sources, that its data had been published in police blotter sections of print news papers, that it had over a million subscribers to its personalized crime alert email service, and that it regularly provided crime data to other media organizations. The website argued that it was news service because it provided free crime information to visitors, sold crime data to corporate media clients, and because they edited the data sent to its subscribers by classifying the crimes in the email updates.

The PAC once again stated that simply disseminating information electronically does not meet the definition of “news media,” and that there must be some adherence to recognized journalistic standards similar to that of traditional media.  The PAC found that the personalized crime updates that the website sent to its subscribers was evidence that the website existed for a commercial purpose, rather than existing to disseminate news of interest to the public at large. The PAC also found that the essential product of the website was the compilation of data, as opposed to original content compiled by journalists using recognized journalistic standards. The PAC held that the website was simply repackaging existing data for particular users based on their location, and therefore lacked the essential components necessary to be considered “news media” under FOIA.

Post Authored by Kurt Asprooth, Ancel Glink

Wednesday, May 17, 2017

Avoiding Legal Pitfalls in Hiring Interns

From Ancel Glink’s sister blog, The Workplace Report:  School is Out, Interns are In

School’s out for the summer, which means one thing for employers: it’s time to hire interns. What’s not to love about interns? Employers get students who are eager to prove themselves to work for free. All of the tedious tasks that no one wants to do can be dumped onto an intern.

There is, however, one thing not to love about hiring an intern: a lawsuit. Gone are the days where employers could basically hire an employee for free and call that person an intern. The Department of Labor has taken a more critical look at internship programs and has set relatively strict requirements in order for a worker to be labeled as an unpaid intern.

The Department of Labor has established the following 6 requirements for any unpaid internship program: 

  1. The internship must provide training that would be similar to what an intern would receive in an educational environment;
  2. The internship must be for the benefit of the intern;
  3. The intern must not displace a regular employee;
  4. The employer must derive no immediate advantage from the intern, and may actually have its operations impeded;
  5. The internship should be for a fixed duration, and the intern is not necessarily entitled to a job at the conclusion of the internship;
  6. Both the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of these requirements are met, then the Fair Labor Standards Act, which requires employees to be paid minimum wage, is not triggered, and an intern does not need to be paid. 

As these six requirements show, internships must provide educational experiences and not just be a cheap source of labor for an employer. Therefore, employers may want to think twice about assigning interns menial tasks that can be performed by employees.

Before you hire an intern, you may want to contact an experienced attorney to review your internship program to ensure that it is in compliance with the law.

Original Post Authored by Matthew DiCianni, Ancel Glink

Thursday, May 11, 2017

Officers Challenge Police Department Ban on Tattoos

In 2015, the Chicago Police Department issued an order requiring all police officers on duty or otherwise "representing" the police department to cover all tattoos, either with clothing or cover-up tape. The department's stated rationale was to "promote uniformity and professionalism." 

Shortly after the order was issued, three officers sued the City, claiming that the department's order violated their right to free speech. The district court dismissed the lawsuit, and the officers appealed to the 7th Circuit Court of Appeals. While that appeal was pending, the City was also subject to a union grievance challenging the same department order. That grievance went to arbitration, and the arbitrator ruled that the order violated the collective bargaining agreement. As a result of the arbitrator's ruling, the City revoked the order.

The 7th Circuit issued its ruling yesterday, on the officers' appeal of its First Amendment challenge to the department order. The 7th Circuit did not rule on the substance of the appeal since the City had already revoked the challenged order. Instead, the Court remanded the case back to the district court with instructions to vacate its ruling in favor of the City. Medici v. City of Chicago (7th Cir., May 10, 2017).

Although the Court did not expressly rule on whether the tattoo ban violated the First Amendment, language in the decision about the broad scope of the ban, the officers' rights of free expression, as well as the instructions to the district court to vacate its ruling in favor of the City, suggest that the 7th Circuit may have ruled against the City had it reached the merits of this case.

Post Authored by Julie Tappendorf

Wednesday, May 10, 2017

City Residency Requirement for Public Safety Employees Does Not Violate Due Process

Milwaukee's City Charter previously required all city employees to live within city limits. But, in 2013, the Wisconsin state legislature passed a law prohibiting local governments from imposing residency requirements as a condition to employment. The statute contains an exception that allows local governments to require law enforcement, fire, and emergency personnel to live within 15 miles of the local government employer. When Milwaukee refused to follow the statute, the police association filed suit against the City, arguing it could not enforce the residency requirement, and the Wisconsin Supreme Court ruled in the association's favor.

After the City lost this first lawsuit, it amended its City Charter to conform to the state law and to require only public safety personnel to live within 15 miles of the City limits. The police association again filed suit against the City, this time to claim that the affected employees have a vested right to live outside of the City, and that the City's amendment to its Charter violated the employees due process rights.  This time, the court ruled against the police association, finding that the City Charter amendment simply followed state statute. The court rejected the claim that employees have a "vested right" to live wherever they want, and upheld the City Charter amendment requiring public safety personnel to live within 15 miles of the City limits.

Post Authored by Julie Tappendorf

Tuesday, May 9, 2017

How FOIA Treats News Media Differently

Yesterday, we reported on a PAC (Public Access Counselor) advisory opinion that determined that a local blog fell within the definition of "news media" under FOIA based on various factors applied by the PAC in the opinion. We mentioned yesterday that this designation is important to public bodies, because FOIA treats "news media" differently in a number of respects. Here are a few examples:

1.  Recurrent Requester.  

FOIA provides a mechanism by which a public body can classify an individual or organization as a "recurrent requester" based on the number of requests submitted by that person/organization within a particular time period. Specifically, if a requester has (1) submitted 50 or more FOIA requests in a 12 month period; or (2) 15 or more FOIA requests in a 30 day period; or (3) 7 or more FOIA requests within a 7 day period, the public body can notify the requester that he or she will be classified as a "recurrent requester." That allows the public body additional time to respond to the request, similar to a commercial request. That provision specifically exempts news media, however, to the extent that the principal purpose of the media's FOIA request is (i) to access and disseminate information concerning news and current or passing events; or (ii) for articles of opinion or features of interest to the public; or (iii) for the purpose of academic, scientific, or public research or education.

2.  Voluminous Request.  

FOIA also allows a public body to classify a particular FOIA request as a "voluminous request." A voluminous request is defined as (1) more than 5 individual requests for more than 5 categories of records or a combination of individual requests that total more than 5 categories in a 20 day period; or (2) requiring the compilation of more than 500 pages of records. A public body can notify the requester that his or her request will be treated as a voluminous request, giving the public body more time to respond and allowing the public body to charge for search time and electronic data.  Like the recurrent requester, however, news media are exempt from this provision of FOIA when the purpose of the media's request is as set forth above.

3.  Commercial Request.  

A commercial request is defined as a request for information that is to be used for "sale, resale, or solicitation or advertisement for sales or services." The news media are exempt from this definition when the purpose of the media's request is as set forth above.

4.  Fee Waiver or Reduction.

FOIA allows a requester to ask for a fee waiver or reduction. In its request for a fee waiver or reduction, the requester is required to show that the waiver or reduction is in the public interest, defined as "the principal purpose of the request is to access and disseminate information regarding the health, safety and welfare of the legal rights of the general public and is not for the principal purpose of personal or commercial benefit."  FOIA states that the commercial benefit factor does not apply to news media, although the media must still show the "principal purpose" factor.  As discussed in a previous blog post, the decision whether to grant a fee waiver or reduction is entirely within the discretion of the public body. 

5.  Exemption for GIS and Similar Data.

FOIA contains an exemption for GIS data and other designs, drawings and research data obtained or produced by a public body when disclosure could reasonably be expected to produce private gain or public loss.  The GIS exemption does not apply to requests from the news media, however. 

Post Authored by Julie Tappendorf

Monday, May 8, 2017

PAC Finds Local Blog is a Member of the “News Media” Under FOIA

In another recent advisory opinion, the Public Access Counselor of the Illinois Attorney General's office (PAC) addressed the definition of “news media” under Section 2(f) of the Illinois Freedom of Information Act and whether it applied to a local blog.

In 2017 PAC 46249, a local blog was designated as a "recurrent requester" by a public body for submitting numerous FOIA requests. The blog appealed to the PAC, claiming that it was a member of the “news media” under FOIA.  Section 2(f) of FOIA defines “news media” as a “newspaper or other periodical issued at regular intervals whether in print or electronic format” or a “news service whether in print or electronic format.” Section 2(g) of FOIA exempts members of the news media from being deemed recurrent requesters by public bodies. 

The PAC began by interpreting the definition of “news media” under FOIA.  Noting that no Illinois court had addressed the issue, the PAC adopted the test set forth in other jurisdictions, which states as follows:

An individual or entity that self-publishes information on the Internet generally must demonstrate some adherence to recognized journalistic standards such as editorial oversight or the creation of original content similar to that of traditional media in order to be considered “news media.”

The public body claimed that the blog did not adhere to recognized journalistic standards, and argued that the personal commentary and editorials of the blog’s publisher were opinion-based content that was not analogous the editorial oversight and fact checking that are standards of traditional news sources.  In response, the blog submitted evidence that its content was focused on in-depth reports and commentary on local politics and governmental issues, that it had a sizeable readership, and that it had been cited in other traditional and non-traditional media outlets. The PAC found that the blog was regularly updated with posts on governmental issues in the region and elsewhere, and that the blog often included original content consisting of the opinion and commentary of the blog’s publisher. 

The PAC noted the public body's focus on the blog's alleged lack of editorial oversight and fact-checking.  However, the PAC held that whether a publication can be considered “news media” for the purposes of FOIA depends on the totality of the circumstances, and no single factor is dispositive.  The PAC found that the blog functioned much like a member of the traditional news media due to (1) its production of original content; (2) its range of reporting on issues of public interest; (3) its established presence on its own and in the traditional news media; and (4) the size and diversity of its readership. The PAC concluded that, based on the totality of the circumstances, the blog was a member of the “news media” under FOIA, and as a result, the public body had improperly designated the blog as a recurrent requester.

It is important to note that this opinion does not mean that any blog or social media site will automatically qualify as "news media." Instead, the determination of "news media" will depend on the facts and application of a variety of factors to determine whether the site functions like a member of the traditional news media, as discussed in the opinion. 

For public bodies, this is an important test because FOIA includes a variety of special rules for news media, including exempting them from the "recurrent requester" and "voluminous request" provisions of FOIA, among others. For more information on how FOIA treats news media differently, check out tomorrow's blog.

Post Authored by Kurt Asprooth, Ancel Glink

Thursday, May 4, 2017

Revocation of Fraternity Status Results in Zoning Code Violation

In 2015, Dartmouth College in Hanover, New Hampshire revoked the "student organization" status of Alpha Delta, a fraternity most famous for having inspired the hit comedy film “Animal House,” after finding that at least 11 new pledge brothers’ buttocks were branded with the Alpha Delta Greek letters. 

Shortly after its student organization status was revoked by the College, the Town notified the fraternity that the continued use of the property as a residence following its “derecognition” by Dartmouth College was a violation of the Town’s zoning ordinance and that the continued occupancy of the property by at least 18 individuals must cease immediately. The Town of Hanover’s zoning ordinance allows a student residence within the institution district by special exception when the residence is “designed for and occupied by students and operated in conjunction with another institutional use, which may include individual living units with social rooms and kitchen facilities for any number of students.” However, Alpha Delta had never sought a special exception for the use of its property, instead relying on being grandfathered in when in 1976 the zoning ordinance was enacted. So, 

Alpha Delta appealed the zoning administrator’s decision to the ZBA, arguing that it was “grandfathered” from the special exception requirement. However, following a hearing, the ZBA ruled that Alpha Delta failed to provide any proof that it was lawfully nonconforming.

The fraternity then appealed to the courts. The New Hampshire Superior and Supreme Courts both agreed that in order to prove that the fraternity use was grandfathered, Alpha Delta needed to show that it operated its property in a manner that was not ‘in conjunction with another institutional use’ at the time the ‘in conjunction with’ requirement was adopted, in 1976.  The fraternity failed to do so. As a result, the court upheld the ZBA’s finding that upon the College’s revocation of its recognition of Alpha Delta as a student organization, Alpha Delta has no association with the College and was, therefore,no longer “operating in conjunction with” the College. Dartmouth Corp of Alpha Delta v Town of Hanover, No. 2016-0304 (N.H.April 11, 2017).

Authored by Megan Mack, Ancel Glink

Wednesday, May 3, 2017

PAC Finds in Favor of Library Board on OMA Complaint

One of our blog readers forwarded a copy of a recent advisory opinion issued by the Public Access Counselor of the Illinois Attorney General's office (PAC) ruling in favor of a public body. Specifically, the PAC found that a library board’s agenda item "sufficiently described" the general subject matter of the item being presented for approval to the board, in compliance with the Open Meetings Act.  2017 PAC 46368.

At one of its board meetings, the library board approved the hire of a consulting firm, based on an item on the agenda, stating, “Hire consultant - Action Required.” The agenda item immediately preceding that item stated, “Determine not to exceed amount for community engagement consultant - Action Required.” In her complaint to the PAC, the complainant alleged the board violated section 2.02(c) of the Open Meetings Act, which requires that the agenda state “the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.”  The complainant claimed that the agenda item regarding the consultant was too vague and broad to comply with the OMA.

In a surprising finding in favor of the board, the PAC found that although “Hire consultant - Action Required” did not give details of the proposed action, section 2.02 only required that the agenda set forth the general subject matter of the item.  Further, the PAC noted that the intent of section 2.02(c) is to provide notice of all matters for which the public body will take final action. The PAC found that together, the agenda item and the item preceding it sufficiently stated the general subject matter regarding the nature of the consultant’s work and provided advance notice that the board would take final action to determine the compensation and hire a community engagement consultant. 

The guidance provided in this advisory opinion is the type that is actually helpful to public bodies in complying with the OMA. It's unfortunate that this type of guidance is usually found only in advisory rather than binding opinions, particularly since the PAC does not make its advisory opinions readily available by posting advisory opinions on its website.

Post Authored by Erin Baker, Ancel Glink 

Monday, May 1, 2017

Hotel Tax Not Apply to Online Travel Company Fees

An Illinois appellate court recently ruled against the City of Chicago in its lawsuit against Expedia, Hotels.com, Hotwire, and other online travel search companies regarding collection of the City's hotel tax. City of Chicago v. Expedia, et al., 2017 IL App (1st) 153402.

In 1973, the City of Chicago adopted an ordinance requiring all owners, managers, or operators of hotel accommodations to collect from the occupant and pay to the City a hotel tax. The City subsequently tried to apply the hotel tax to the upcharge imposed by online travel companies such as Expedia, Hotels.com, and Hotwire, and filed a lawsuit when the companies failed to collect and pay the tax to the City. The defendants, all online travel companies, claimed that they were not liable for the tax because they were merely travel intermediaries, and not hotel owners, managers or operators. 

The circuit court had previously ruled in the City's favor that the companies were operators under the hotel tax ordinance and were liable for collecting and paying the taxes. However, on appeal, the appellate court reversed, and ruled against the City. The appellate court determined that the online travel company was not an owner, manager or operator of hotel accommodations under the City's ordinance. The court also held that the City was not entitled to additional tax revenue on the difference between what the hotel charged the online company for its inventory, and what the online company charged the occupant when the occupant booked the reservation online. Instead, the court held that this difference was more in the nature of a facilitation and service fee, and not "rent" for the hotel room that would be subject to the tax.

There's a decent chance the City of Chicago will appeal this decision.

Post Authored by Julie Tappendorf

Friday, April 28, 2017

Indiana Gov. Vetoes "Search Fee" for Public Records Requests

We write a lot about public records laws on this blog because the Illinois Freedom of Information Act affects so many aspects of government business and communications. Although not applicable to Illinois, it is interesting to see what our "neighbors" are doing in connection with their own state public records laws. 

Recently, the Indiana state legislature passed a bill that would allow units of local government to charge the public an hourly fee to search for records in response to a public records request. The fee can be no more than (1) the hourly rate of the person doing the search or (2) $20.00. The first two hours of search time must be provided at no charge, and then an hourly fee could be applied to any search in excess of two hours. The bill also required governments to provide electronic versions of documents, if requested.  Indiana House Bill 1523.

The bill was approved 63-27 in the Indiana House and 44-3 in the Indiana Senate. On Monday this week, Indiana Governor Holcomb vetoed the bill. It has been reported that although the Governor supported the provisions of the bill that dealt with the provision of electronic records, he opposed the search fee. 

Post Authored by Julie Tappendorf

Thursday, April 27, 2017

PAC Says Public Body Must Respond to FOIA

The Public Access Counselor of the Illinois Attorney General's office issued its second opinion for 2017 last week. PAC Op. 2017-002.  This opinion involved a FOIA request filed by a reporter seeking a copy of a police report of a police pursuit. The public body did not respond to the request, and the reporter filed a request for review. The public body's FOIA officer told the PAC that she had forwarded the FOIA request to the public body's attorney and police department for response, but neither the attorney nor the police department responded or provided the records to the requester.

Not surprisingly, the PAC found the public body in violation of FOIA for not responding to the request or providing the requested record.  

So, public bodies must respond to FOIA requests. No new guidance in this binding opinion.

Post Authored by Julie Tappendorf