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Friday, February 17, 2017

PAC Review 2016 Edition, Part 2

Today, we finish our summary of the Public Access Counselors binding opinions for 2016.

PAC Op. 16-008: (not unduly burdensome)
In PAC Op. 16-008, the PAC found a public body in violation of FOIA for improperly denying a FOIA request as unduly burdensome. The request asked for digital copies of emails between a City official and planning consultants from June 1 through July 1, 2016. The FOIA officer responded that the request would be unduly burdensome as there were more than 50 emails, consisting of over 100 pages, plus attachments, and asked the requester to narrow the request. The requester responded by filing a complaint with the PAC, objecting to the denial. Although the PAC acknowledged that retrieval and review of 174 pages of documents might impose a burden, it concluded that the City failed to show that compliance "would so burden the operations of the City as to outweigh the public interest in the disclosure of the requested records." 

PAC Op. 16-009: (privacy exemption under FOIA) 
PAC Op. 16-009, addressed five FOIA requests from reporters to a public body, which each sought police records and reports related to a former State Representative, who lives and works in the Village, and who had resigned from the Illinois House of Representatives in 2016 after allegations of an extortion scandal and evidence of inappropriate online activities. The opinion contains a variety of rulings regarding specific records, upholding the Village's use of the privacy exemption for certain investigatory records, and rejecting it for others. 

PAC Op. 16-010: (failure to timely respond to FOIA is violation)
In PAC Op. 16-010, the PAC found the Chicago Public Schools (CPS) in violation of FOIA for failing to timely respond to a FOIA request. The Sun-Times had filed a FOIA request seeking copies of all invoices submitted to CPS from an auditing company. The newspaper received an “automatic extension” email reply from CPS. A month after submitting the request to CPS, the newspaper filed a request for review with the PAC alleging that it still had not received a response to its FOIA request. The PAC found CPS in violation of FOIA for its complete failure to respond to the FOIA request. The PAC also did not object to CPS use of an "auto-extension" (that the extension was needed due to a high volume of FOIA requests) as a justification for the additional 5 day response time. Of course, the fact that CPS did not respond within the statutory time period, as extended, or properly deny the request, resulting in the PAC's finding that CPS violated FOIA.

PAC Op. 16-011: (failure to timely respond to FOIA is violation)
In PAC Op. 16-011, the PAC found a public body in violation of FOIA for failing to "appropriately respond" to a FOIA request within 5 business days. PAC Op. 16-011. Although the Authority did work out a clarification of the request with the requester, the PAC found the Authority in violation for failing to respond to the clarified request either.

PAC Op. 16-012: (public employee salary information is releasable under FOIA)
In PAC Op. 16-012, the PAC found a public body in violation of FOIA for improperly denying a FOIA request for the names and titles of staff members receiving raises and bonuses. The Authority denied the request, claiming the information was protected as private information, would constitute an invasion of privacy if released, and that the Personnel Records Review Act prohibited disclosure of this information. Not surprisingly, the PAC found the Authority in violation of FOIA. Consistent with past opinions, the PAC noted that records pertaining to a public employee's compensation (i.e., salary and bonuses) is a public record subject to release.

PAC Op. 16-013: (personnel exemption under OMA improperly used)
In PAC Op. 16-013, a reporter filed a request for review with the PAC alleging that a City Council violated the Open Meetings Act when it went into closed session to discuss pay raises for City employees. The City Council argued that it was authorized to go into closed session under section 2(c)(1) of OMA, which allows a public body to go into closed session to discuss the "compensation" of employees. The PAC rejected the City's argument, however, finding that this particular exemption only applies to discussion of compensation of specific employees, and the City Council discussed an "across the board" pay raise rather than raises for named employees.  The City also argued that the closed session was authorized under section 2(c)(2) of OMA, which allows a public body to discuss "deliberations concerning salary schedules for one or more classes of employees" in closed session. The PAC rejected that argument, however, because the City Council did not cite that exception when it went into closed session. The PAC concluded that the City Council violated OMA.

PAC Op. 16-014: (advance notice rule for recording meetings unreasonable)
In PAC Op. 16-014, a watchdog group filed a complaint with the PAC alleging that the local school district board violated the Open Meetings Act when it prohibited him from recording the board's open session. The board had rejected his request made 10 minutes before the meeting based on a local board policy that required a person to notify the board president or superintendent in advance. Although the board's recording policy was silent on what advance notice was required, the board had applied the policy to require 24 hours advance notice. The board explained that the advance notice was required to ensure that the recording equipment was properly placed to avoid recording the images of students in attendance at a school board meeting. The PAC rejected the board's arguments and ruled that the school board's "advance notice" requirement for recording board meetings was not reasonable under the OMA. The PAC noted that the board had not cited any compelling reason for requiring advance notice (the PAC did not accept the board's argument that children may be present, instead stating that the board could simply move its meetings if it were concerned about student privacy.

PAC Op. 16-015: (final action on item not on agenda violates OMA)
In PAC Op. 16-015, a village trustee filed a complaint with the PAC alleging that his board violated the OMA by voting on an item that was not on the agenda. At a board meeting, one of the board members made a motion to approve a settlement agreement under the agenda item identified as "Old Business." The minutes showed that the board attorney had cautioned the board that it could not take action on the agreement because it was not on the minutes. Nevertheless, the board took a vote and the motion passed. The PAC found the board in violation of the OMA for taking final action on a matter that was not identified on the agenda.

Post Authored by Julie Tappendorf

Thursday, February 16, 2017

PAC Review, 2016 Edition, Part 1

The Public Access Counselor of the Attorney General's office has not published a binding opinion on FOIA and OMA complaints in 2017 yet. So, while we wait, let's look back at the 15 binding opinions that the PAC issued in 2016. We will summarize some of them today, and the remainder tomorrow. 

Anyone want to guess how many of these binding opinions were in favor of the public body? 

PAC Opinion 16-001 (response to FOIA request required)
In PAC Op.16-001, a reporter for the Chicago Sun-Times filed a FOIA request with the Chicago Police Department asking for "First Amendment-related worksheets" and emails and other communications relating to the Communist Party, Ferguson, the National Moment of Silence, and Black Lives Matter. Two weeks after he filed the request with the CPD, the reporter filed a complaint with the PAC claiming that the CPD failed to produce the records or respond to the request. Not surprisingly, the PAC found the CPD in violation of FOIA where the CPD did not produce the records or extend the time period for response within the 5 business days required for response under FOIA.

PAC Opinion 16-002 (post mortem photographs)
In PAC Op. 16-002, the PAC found the Illinois State Police in violation of FOIA when it denied a FOIA request filed by the decedent's estate for post-mortem photographs of a decedent  (including death-scene, autopsy, and other photographs) in the possession of the ISP. The ISP cited 7(1)(c) of FOIA in support of its denial of the request. That exemption protects from release certain personal information that, if released, would constitute a clearly unwarranted invasion of privacy. The PAC rejected the ISP's denial of the FOIA request, holding that an individual's personal privacy interests cease to exist upon death. The PAC directed the ISP to release the death-scene and autopsy photographs to the requester.

PAC Opinion 16-003 (response to FOIA request required)
In PAC Op. 16-003, a requester filed a FOIA request with a school district asking for various emails and text messages of certain district employees, as well as employment interview records. The district responded that it would be extending the time frame for an additional 5 days. However, when the requester had not received the records 4 weeks later, she filed an appeal with the PAC. The PAC found the district in violation for (1) not extending the time period for response properly; (2) improperly calculating the time for response with the extension; and (3) not providing the documents to the requester.
PAC Opinion 16-004 (timely response to FOIA request)
On April 5, 2016, a newspaper reporter filed a FOIA request with the Chicago Police Department for various information relating to the department's staffing levels, as well as copies of all personnel orders issued by the department. The CPD extended the time period for response and requested an additional time frame for response from the requester. On May 12, 2016, the reporter had not yet received the requested records and filed a request for review with the PAC office. In PAC Op. 16-004, the PAC found the CPD in violation of FOIA for failing to notify the requester of the extension within 5 business days, and for failing to provide the records to the requester, and directed the CPD to comply with FOIA and provide responsive records to the requester, subject to redactions.

PAC Opinion 16-005 (response to FOIA request required)
In PAC Op. 16-005, the Public Access Counselor found a public body in violation of FOIA for a complete failure to respond to a FOIA request. The request had asked for records pertaining to employee salaries, independent contractor compensation, attorneys' fees, elected officials compensation, and debt records. The Village did not respond to the request, nor did the Village extend the time for response. When the requester filed a complaint with the PAC office, the Village did not respond to that complaint either. Not surprisingly, the PAC found the Village in violation, and ordered the Village to provide the records. 

PAC Opinion 16-006 (emails on private devices)
In PAC Op. 16-006, the PAC found the Chicago Police Department in violation of FOIA when it failed to provide copies of emails sent/received by Chicago police officers on their private accounts that related to the Laquan McDonald shooting. The City had provided the requester with emails that were sent/received on the officers' official City email accounts or were found on the City server. The City did not provide any emails on the officers' personal email accounts on the basis that the emails were not public records because the City did not have any control over the officers' personal devices, and the emails were not used by, received by, in the possession of, or under the control of a public body. The PAC ruled against the City, finding that "communications pertaining to the transaction of public business that were sent or received on the CPD employees' personal e-mail accounts are 'public records' under the definition of that term in section 2(c) of FOIA." The PAC noted that any other interpretation would be "contrary to the General Assembly's intent of ensuring public access to full and complete information regarding the affairs of government."

PAC Op. 16-007: (closed session)
In PAC Op. 16-007, the PAC found a public body in violation of the OMA for discussing imminent litigation in closed session. Although the PAC ackowledged that the majority of the closed session related to the board's discussion of the possibility of a lawsuit to challenge a bond sale, nevertheless the PAC rejected the public body's argument that the potential for an injunction or other legal action justified the closed session. The PAC ordered the public body to release a copy of the verbatim recording.  

To be continued...

Post Authored by Julie Tappendorf

Wednesday, February 15, 2017

Draft Survey of Short-Term Rental Legislation

Piggybacking on yesterday's blog post about the proposed legislation to restrict Illinois municipalities from regulating short-term rentals (e.g., AirBNB), the Land Use Prof Blog just posted a survey they conducted on state legislation on short-term rentals.  You can read the story here and check out the draft survey here.  

It's interesting to see what other states have done or are contemplating doing in connection with the regulation of short-term rentals. According to the draft survey, most states have not adopted statutes restricting local regulation. However, there are a few that have state laws, including California (notice requirements), Arizona (preempts local regulation), and New York (state ban). Others have introduced legislation, but have not yet enacted any, including Idaho, Hawaii, Nebraska, Pennsylvania (and as I mentioned yesterday, Illinois).

This issue is certain to gain more legislative interest as the popularity of short-term rentals increases.

Post Authored by Julie Tappendorf

Tuesday, February 14, 2017

Regulation of Short-Term Rentals

Regulation of short-term rentals has been a big issue for local governments. Some have adopted zoning regulations for short-term rentals and others have imposed hotel/motel taxes on these uses. Still others have attempted to regulate and even the platform itself (i.e., AirBNB, Home Away, etc.),

Some of these regulations have faced challenges, including the City of Chicago's short term rental ordinance. See our previous report. And now, the Illinois legislature has waded into this area by introducing Senate Bill 1735, called the "Short Term Rental Act."

If passed, the Short Term Rental Act would prohibit local governments from (1) enacting or enforcing an ordinance, regulation, or plan that would have the effect of prohibiting short-term rentals; (2) regulating short-term rentals based on their classification, use, or occupancy (presumably through its zoning ordinance); or (3) regulating the operation of the short-term rental marketplace (for example, the bill would prohibit a government from taxing the platform owner, such as AirBNB or Home Away).

The bill does allow some regulation by local governments. For example, local governments can impose zoning regulations on short-term rentals if the government can demonstrate that the regulation is necessary to protect the public health and safety, such as fire and building codes, traffic control, and waste and pollution control. Local governments can also regulate the selling of drugs, liquor, and pornography in short-term rentals. Finally, local governments can apply sales taxes and hotel/motel taxes on short-term rentals.

The bill includes a home rule preemption, so if this legislation passes, it would apply throughout the state.

Post Authored by Julie Tappendorf

Monday, February 13, 2017

A Panoply of OMA Bills

There are just so many bills being introduced in the Illinois General Assembly that it is really hard to keep up! Quite a few of these would amend the Open Meetings Act, so I thought I would consolidate some of these OMA bills into one blog post. Stay tuned - I'm sure we will see many more before this session ends. Of course, it's anyone's guess as to how many of these (if any) actually make their way to the Governor.

1.  Website Postings.

Pretty much every legislative session in recent years, bills have been introduced to require local governments to post a significant number of public records on their websites. Some of these bills even require a public body to create a website if they don't already have one.  Here are a couple of these bills:  House Bill 290, House Bill 442.

2.  Addressing Public Officials

As you know, the OMA was amended a few years ago to add a section 2.06(g) requiring public bodies to provide an opportunity for public comment. House Bill 3626 would go a step further and require public bodies to allow individuals at least one opportunity to speak at each open meeting and prohibit a public body from adopting a rule that would limit a person to speaking no more than once in a given number of days. The bill would also clarify that individuals cannot be required to do anything more than state his or her name prior to addressing the public body.

House Bill 3326 also proposes to amend the OMA regarding a person's right to comment. This bill would allow individuals to not only address public officials, but also to ask questions of the public officials at the meeting. The public body would be required to provide answers to these questions within 45 days of the meeting.

3.  Attorney Discussions in Closed Session

Senate Bill 1227 would authorize a public body to go into closed session at a meeting to discuss certain matters with an attorney or auditor representing the public body. The language is similar to a provision contained in the Freedom of Information Act that exempts from public release any communications between a public body and its attorney or auditor if those communications would not be subject to discovery in litigation. 

4.  Penalties

House Bill 3326 (same bill mentioned above) also contains a provision that would require a court to impose a civil penalty between $2,500 and $5,000 for willful and intentional violations of the OMA, and make it mandatory for the court to award attorneys' fees for any prevailing party. 

5.  Posting Public Officials Email Addresses

Although House Bill 2944 doesn't amend the OMA, it relates to language already contained in that Act. If passed, HB 2944 would amend the Local Records Act to require local governments to post on their websites a mechanism for members of the public to email their elected officials. The bill also requires the public body to provide hyperlinks to the information on the website's home page.  

As readers of this blog already know, the OMA was amended in 2014 to include this same requirement, so this bill doesn't really offer anything new. (you can read about the 2014 law here).

Post Authored by Julie Tappendorf

Thursday, February 9, 2017

Chicago Area Labor Seminar March 8th

We mentioned previously that Ancel Glink would be presenting its second labor and employment program in the Chicago area. Here are the details:

The Labor and Employment Attorneys of Ancel Glink are 
Here to Prepare You For New Employment Law Changes

When: March 8, 2017, 8:30 a.m to 11:15 a.m.

Where: Bridges of Poplar Creek Country Club (1400 Poplar Creek Drive, Hoffman Estates, IL 60169)

Who:  All local governmental officials, managers, administrators or directors

What: As we get settled into the New Year, employers need to be aware of new employment laws that have recently become effective, or soon will be. Employers also should be aware of the important cases to keep tabs on and what to expect under the new administration. 

In this no-cost "breakfast briefing," the labor and employment attorneys from Ancel Glink will explain the new laws and how to apply them to your employees so that you stay in compliance with state and federal laws. We will discuss topics such as:
  • The myriad of new local and state leave benefit laws; Who gets what?
  • Is your "use it or lose it" policy still valid?
  • Are employees entitled to privacy in the workplace? If so, how much? What are the employer's responsibilities?
  • Travel reimbursement policies:  what are these and who needs one?
  • What changes can you expect with the new presidential administration on overtime, transgender rights, the ACA and other employment initiatives?
Seating is limited. Reserve your spot at the breakfast briefing now by calling Kathy Cook at 312-604-9174 or by making a reservation by email at kcook@ancelglink.com.

Disclaimer: The information in this blog post may be considered attorney advertising material under the applicable rules of certain states. 

Wednesday, February 8, 2017

Bill Would Put Time Limits on Non-Home Rule Municipal Sales Taxes

This morning, Illinois House Bill 2528 was introduced to amend various provisions of the counties code and municipal code regarding the county school facilities tax, county public safety tax, and the non-home rule municipal sales tax.
For municipalities, the proposed legislation would limit the time-frame for imposition of a non-home rule sales tax. Under state statute, a non-home rule municipality can impose up to a 1% sales tax if approved by referendum. Currently, there is no time limit for the tax - once imposed, it stays in effect until repealed. Under this proposed legislation, however, a non-home rule municipal sales tax imposed under this statutory authority must contain a "sunset" provision of not less than 5 and not more than 23 years.
The time limitation for these taxes would only apply to new sales taxes imposed after the effective date of the law (if passed) and would require the non-home rule municipality to identify the time-frame in the referendum question.

Post Authored by Julie Tappendorf

Tuesday, February 7, 2017

Bill Would Reinstate "Public Duty Rule" in Illinois

Last year, we reported on a decision from the Illinois Supreme Court that abolished the "public duty rule" in Illinois. That rule provided that a local government entity and its employees owe no duty of care to individual members of the public to provide governmental services (including police and fire protection services).

Just last week, the Illinois House introduced legislation that would "reinstate" the public duty rule in Illinois. If passed, Illinois House Bill 2349 would expressly "codify" the public duty rule, and clarify that the rule is "grounded in the principle that the duty of a local governmental entity to preserve the well-being of the community is owed to the public at large rather than to specific members of the community."

Because this bill has a significant impact on local governments, we will follow it closely and report on its movement through the legislature.

Post Authored by Julie Tappendorf

Monday, February 6, 2017

Bill Would Make Emails on Private Devices "Public Records"

Given the unclear state of the law with respect to government emails sent/received on private devices and through private accounts, it should come as no surprise that the Illinois state legislature is considering legislation to address this issue. We have reported on the Illinois appellate decision (Champaign v. Madigan) that established a three-part test for determining when emails sent by members of a public body on private devices or accounts are subject to FOIA.  We also reported on the Attorney General's opinion that text messages sent by police officers relating to a recent shooting were subject to FOIA. And finally, we have reported on the lawsuits against Chicago Mayor Emanuel seeking his emails. Even with these lawsuits, decisions, and opinions, government officials (and especially government employees) question whether their emails or text messages are subject to FOIA.

Illinois House Bill 2385 would amend the Local Records Act to expressly provide that all emails sent or received by a government agency, officer, employee, or contractor are public records "regardless of whether the email is sent or received on a personal or agency-provided email address." The bill also includes the following requirements:

  • agencies must provide official email addresses to all officers of the agency if employees are provided with an official email address. 
  • all officers, employees, and contractors to use the official email address. 
  • all officers, employees, and contractors must forward any email sent or received on his or her personal email address to the agency-provided email if it relates to agency business or, if the agency does not have an official email account, then provide a copy of the email to the agency.
The proposed legislation does raise a couple of questions.  

First, the bill only amends the Local Records Act - it does not address whether these records are subject to FOIA, which has a different definition of "public record." Under the Local Records Act (LRA), a public record is defined as records that are worthy of preservation. However, not all emails sent or received in connection with agency business will rise to this level, yet this legislation would legislatively make that determination and require agencies to "preserve" all emails as required by the LRA. This particular legislation may have been more appropriate as an amendment to FOIA, not the LRA, if the legislative intent was to make these communications subject to release to the public (rather than preservation). 

Second, "contractor" is not defined, and this could be problematic, particularly the provision requiring a contractor to use an official email address. The word "contractor" is very broad - it could include an interim or acting village administrator employed by a temp agency who has offices in the agency and whose only duties and responsibilities are for the agency. On the other hand, contractor could be interpreted to include a city attorney, engineer, or planner (or even a contractor on a construction project for the agency), all of whom are employed by non-government agencies, have offices outside the agency, and have duties and responsibilities to their own employer as well as other other agencies or even non-agency clients - requiring all contractor communications to take place on the agency account or server could create administrative burdens on both the contractor and the agency. 

Third, the legislation only addresses emails - it does not address text messages, a method of communication that has created as much, if not more, confusion for public agencies and their officers and employees.

We will monitor this legislation, and expect that if it moves forward, various agencies and organizations will look to address these and other issues with this proposed legislation. 

Post Authored by Julie Tappendorf

Friday, February 3, 2017

New Bill Would Criminalize "Parental Bullying" on Social Media

Illinois House Bill 1769, introduced this week, proposes to amend the Illinois Criminal Code to make it a crime for a parent to engage in "parental bullying." Parental bullying is defined as a parent knowingly and intentionally transmitting any verbal or visual message with the intent to discipline, embarrass, or alter the behavior of the minor that would be perceived as coercive, intimidating, harassing, or cause substantial emotional distress to the minor.

Representative Ford, the bill sponsor, describes "parental bullying" as parents shaming, embarrassing, or humiliating their children on social media in an effort to discipline them. According to news reports, Ford said he was inspired to introduce the bill after a constituent reported to him that she was concerned after her relative shamed a child on social media, and the child was then reportedly teased and beaten up by other kids at school who saw the parent's social media post.

Post Authored by Julie Tappendorf

Tuesday, January 31, 2017

U.S. Supreme Court Will Decide Whether Mug Shots Are Subject to Federal FOIA

It's pretty rare that the U.S. Supreme Court hears a case about the Freedom of Information Act (FOIA). Yet, the Court accepted an appeal of a 6th Circuit Court of Appeals decision that held that a criminal defendant's "booking" photo is not subject to the federal FOIA statute. In Detroit Free Press v. U.S. Department of Justice, the 6th Circuit Court of Appeals determined that a criminal defendant has a "non-trivial" privacy interest in not having his or her booking photos released to the public, or in this specific case, the press.  Although this case involved interpretation of the federal FOIA (and not the Illinois FOIA), the specific exemption that was cited is very similar to that contained in the Illinois FOIA. 

Section 7(c) of the federal FOIA provides that a record compiled for law enforcement purposes is exempt from release if public release "could reasonably be expected to constitute an unwarranted invasion of personal privacy." The 6th Circuit Court of Appeals applied this exemption to find that booking photos fall squarely within the type of personal information that would result in an invasion of personal privacy if released, because "mug shots" depict individuals in an embarrassing and humiliating light. The Court noted that the Internet has made it even more important to protect these photos because once they are posted, they are permanently accessible. Balancing the privacy interests of the arrestee against the public interests of the press, the Court concluded that mug shots are exempt from FOIA.  

Interestingly, the Court acknowledges that a number of states mandate the release of mug shots. Although the Court does not mention Illinois, there is an Illinois statute mandating release of certain arrest information, including the name of the arrestee, the charges brought against him or her, and a photograph, where available. 50 ILCS 205/3b.  

It will be interesting to see how the U.S. Supreme Court decides this case and we will certainly keep you posted on this one.

Post Authored by Julie Tappendorf

Monday, January 30, 2017

School Board Candidate Files Libel Suit for Facebook Post

A candidate for school board member has filed a libel lawsuit against individuals who commented on and shared his Facebook post. His post (which he included as part of his complaint) stated as follows:
Went to kids ball game tonight. We got two sodas, two popcorn and a candy. It took a good minute for the kids to come up with the $7 total. I gave her a $20 and two $1's. The special child (that's politically correct for window licker) looked at me and argued it was only $7. I said I know. She was clueless. Then here comes special child #2 who hands me the two $1's back. I told her I don't want them back and figure it out. I finally gave up after all four special children were lost. I had to tell them to give me $15 back and that I did it because I didn't want any $1 bills. Lord help us with the window lickers, I mean special children. [emoticons removed]
According to news sources, the candidate claims that the actions of the defendants (a special education teacher and two other individuals) in commenting on and sharing his post have damaged his business (he's an attorney) and his reputation.  He argues that contrary to the statements of the defendants, he was not disparaging special-needs children in his Facebook post. He asks for punitive damages, and an injunction to require the individuals to remove the posts. On January 24th, his request for a temporary restraining order (TRO) to have the posts removed was denied, but the remainder of his case continues and the next hearing is scheduled for February 2nd.