Monday, April 9, 2012

PAC Binding Opinions of 2012 in Review (To-Date) - FOIA


Last December, I reported on all of the 2010 and 2011 binding opinions issued by the Public Access Counselor of the Office of the Illinois Attorney General in response to requests for review submitted by members of the public.  In those two years, the PAC issued 11 binding opinions  -- four in 2010 and seven in 2011 and all involving FOIA appeals.  In just the first three and a half months of 2012, the PAC has already issued eight opinions.  Seven of the opinions are FOIA-related and one involves an Open Meetings Act issue (which will be reported on tomorrow).

As in 2010 and 2011, the PAC ruled against the public body in each of the 2012 opinions.  The 2012 FOIA opinions follow:
PAC Opinion 12-001 (recurrent requester)

On January 9, 2012, the PAC issued an opinion interpreting the new provision in the Freedom of Information Act that authorizes a municipality to classify an individual as a "recurrent requester" for purposes of responding to FOIA requests.  In this case, a husband and wife had submitted numerous FOIA requests to a particular village over the course of a year.  The village combined the couple's requests together, classifying them as "recurrent requesters" under Section 3.2 of FOIA.  As a result, the village took the position that it had 21, rather than 5, business days to respond to the request.  The PAC found that the village violated FOIA because the statute defines a requester as one "person."  Therefore, the couple's requests could not be consolidated to fall within the statutory provision of 50 requests within the statutory time period. 

This opinion was initially reported on January 13, 2012.

PAC Opinion 12-002 (time for response)

A reporter submitted a request for disciplinary records for the years 2003-2006 from the Chicago Public Schools (CPS) but did not receive a response within 5 business days of the request.  The reporter filed a request for review with the PAC.  CPS responded to the PAC’s inquiry that it was in the process of retrieving and compiling the records.  The PAC determined that because CPS did not provide the records within 5 business days, it violated FOIA, ordered CPS to provide the documents at no charge to the reporter.

PAC Opinion 12-003 (privacy exemption)

A reporter filed a FOIA request to Chicago State University seeking the names of all freshman in 2005, names of all who graduated in 2011, and names of those who began school in 2005 who graduated in 2011.  CSU submitted a notice of intent to deny to the PAC, asserting that release of the names would be an unwarranted invasion of personal privacy.  CSU also claimed that the Family Educational Rights and Privacy Act prohibited release of the requested information.  The reporter filed a request for review with the PAC, who concluded that CSU violated FOIA because (1) FERPA does not protect the requested information from disclosure; (2) the requested information is not “private information” under section 7(1)(b); and (3) release of the information would not be an unwarranted invasion of privacy.

PAC Opinion 12-004 (personal delivery of FOIA)

An individual hand-delivered a FOIA request to the village president at a board meeting.  The village president denied the request, citing the new village policy that required all requests be submitted by mail, and the requester filed a complaint with the AG.  The AG looked to Section 3(c) of the Act that provides that FOIA requests “may be submitted to a public body via personal delivery, mail, telefax, or other means available to the public body.”  Based on this language, the village could not adopt a policy refusing to accept hand-delivered FOIA requests.  The AG did acknowledge that the opinion did not mean that personal delivery at any time or place is acceptable.  Specifically, the opinion did not mean a “village officer” would be obligated to accept delivery of a FOIA request during a chance encounter on the sidewalk, or at his or her private residence or place of business. 

This opinion was initially reported on January 27, 2012.

PAC Opinion 12-005 (legal invoices)

A reporter filed a FOIA request requesting records of a school district’s legal expenses regarding a proposed TIF district in the City.  The district denied the request, citing section 7(1)(m) which exempts communications between a public body and an attorney representing the public body that would not be subject to discovery in litigation.  The district offered to provide records showing the amounts paid for legal work.  The reporter filed a request for review with the PAC.  The PAC determined that although certain types of billing records that indicate the type of work performed or matters discussed between the attorney and client are subject to the attorney-client privilege; however, other information on the invoices should be released such as the date on which work was performed, the attorneys who performed the work, the number of hours billed, and the amount billed.  The PAC also opined that certain work descriptions that do not disclose privileged information could also be disclosed.   The PAC concluded that the district violated FOIA by withholding the legal invoices in their entirety and should have provided redacted invoices.

PAC Opinion 12-006 (arrest records)

A reporter filed a FOIA request for all police incident reports related to a school board president and candidate for election to the General Assembly, including any batteries of a woman or paramedic assistance to a battered woman.  The village denied the request pursuant to section 7(1)(c), as an unwarranted invasion of privacy.  The reporter filed a request for review with the PAC.  The PAC reviewed the records and determined that because they were “arrest records” they were subject to release under section 2.15(a) of FOIA.  The analysis in the opinion centers on the individual being deemed an “arrestee,” even though the PAC itself acknowledges that this individual was not charged and he was released from custody the same day he was detained.

PAC Opinion 12-007 (investigative records)

An individual filed a request with the Illinois Department of Financial and Professional Regulation requesting records relating to an investigation of a real estate agent and realty company.  There was no response and the individual filed a request for review with the PAC.  The PAC found there was no valid exemption and ordered that the Department provide the records.

PAC Opinion 12-008 (Open Meetings Act)

See tomorrow’s blog for a summary of this decision.

Post Authored by Julie Tappendorf, Ancel Glink


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