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Wednesday, December 9, 2015

PAC Review, 2015 Edition

It’s time for our annual round-up of the PAC office’s activities, at least with respect to binding opinions on FOIA and OMA complaints.  Here they are…all 11 of them. That’s right – the PAC issued only 11 binding opinions in all of 2015 (as of today - we will update if there are any opinions released in the next 2 weeks)

PAC Opinion 15-001 (cooperation with PAC request for review)
In PAC Opinion 14-001, the PAC found the Illinois Department of Financial and Professional Regulation in violation of FOIA for refusing to provide records to a requester relating to a complaint against licensed engineers. The PAC first determined that the IDFPR's refusal to provide copies of the responsive records to the PAC for confidential review violated section 9.5(c) of FOIA which requires a public body to "provide copies of records requested and...otherwise fully cooperate with the Public Access Counselor." Also, the PAC rejected the IDFPR's stated exemptions for denial relating to the investigation of a licensee.  

PAC Opinion 15-002 (rebate agreements)
PAC Opinion 15-002 involved Rosemont's denial of a request for records pertaining to Garth Brooks' record-breaking concert at Allstate Arena. The village provided the records but redacted the amount of the rebate based on the “trade secret” exemption and a local ordinance that allowed the village to withhold documents if the village believed the release would put village-owned entertainment venues at a competitive disadvantage. The PAC determined that the village was preempted from adopting an ordinance that would avoid disclosing records to the public and rejected the village's argument that the records amounted to "trade secrets.”

PAC Opinion 15-003 (compensation of employees in closed session)
In PAC Op. 15-003, a reporter filed a complaint with the PAC alleging that the Waubonsee Community College board of trustees violated the OMA by discussing improper topics in closed session. The PAC determined that although the board did discuss issues relating to the compensation of employees, it also discussed general budgetary matters that were not proper topics for closed session in violation of the OMA.

PAC Opinion 15-004 (employee settlement agreement)
In PAC Op. 15-004, the PAC found a public body in violation of FOIA for denying a request for a copy of an agreement that settled a lawsuit between the City and an employee. The public body denied the request, citing the personal privacy exemption and that the non-disclosure provisions in the settlement agreement prohibited release. The PAC rejected these arguments, finding that settlement agreements are public records and the non-disclosure provision in the agreement only prohibited disclosure by the former employee, not the City.

PAC Opinion 15-005 (personnel exemption closed session)
In PAC Op. 15-005, the PAC determined that the Village of Blue Mound violated OMA when it discussed a police services contract in closed session and voted to approve that contract in open session without the item being listed on the agenda. The PAC noted that the "personnel" exemption applies only to discussions about specific employees. Although the Board did discuss the termination of the Police Chief as a result of the contract, the bulk of the Board's discussions centered on the terms of the contract, not a specific employee.

PAC Opinion 15-006 (doctors salary information not exempt)
In PAC Op. 15-006, a requester filed a FOIA request with Franklin Hospital for copies of the employment agreements between the hospital and five doctors. The hospital redacted doctors' salaries, incentives, and bonuses under the personal privacy and private information exemptions. The PAC held that hospital doctors are public employees, whose salary information is releasable under FOIA, and not protected by exemptions.
PAC Opinion 15-007 (personnel exemption for closed session)
In PAC Op. 15-007, the PAC found a finance committee of a county board in violation of the OMA relating to a closed session. A reporter filed a complaint arguing that the committee did not state the reason why it was going into closed session. Second, the reporter claimed that the topics discussed in closed session were not appropriate subjects. The committee responded that it discussed two matters in closed session: (1) a county employee hiring freeze and (2) the termination of an employee position. The PAC held that "a mere reference to 'personnel' does not adequately identify any exception that authorizes a public body to close part of a meeting."

PAC Opinion 15-008 (Governor’s calendar not exempt)
The PAC found the Governor's office in violation of FOIA for redacting certain information from his calendar in PAC Op. 15-008.  The reporter filed a request for review with the PAC, arguing that the Governor’s office improperly redacted names of individuals identified in the calendar. The found that the calendar was prepared by the Governor's office and pertains to public business. The PAC rejected the Governor's argument that disclosing details of the Governor's calendar constitutes a security concern and that the entries constituted "predecisional deliberative material" that would be exempt under 7(1)(f).
PAC Opinion 15-009 (surveillance video of fatal accident not exempt)
In PAC Op. 15-009, the PAC found IDOT in violation of FOIA for not turning over surveillance videos of a fatal accident. The requester (an attorney for the defendant in a case involving the accident) had filed a FOIA request for the videos. IDOT denied the request, citing that it would be an invasion of personal privacy of the victim's family to release the videos, and the victim could not consent to its release. The PAC found that the victim’s family's right to privacy was outweighed by the attorney's interest in obtaining the video recording.

PAC Opinion 15-010 (attorney-client communications)
PAC Op. 15-010 deals with a reporter's request for information listing all outside counsel used by the state of Illinois for 2014 and 2015. The request was denied based on the "attorney-client communication" exemption in 7(1)(m) of FOIA. The PAC rejected the Governor's cited exemption, finding that the responsive records (which listed the law firm or attorney, hourly rate or flat rate, the agency represented, and the general subject matter of the work) did not contain any privileged communications (i.e., details regarding the nature of services provided by the attorneys, the substance of the work performed, or matters discussed between attorneys and clients) that would fall under 7(1)(m). The PAC also rejected the Governor's argument that the records were exempt as "attorney work product," holding that work product is limited to records that reveal the theories, mental impressions, or litigation plans.

PAC Opinion 15-011 (unduly burdensome)
PAC Op. 15-011 involved a June 22, 2015 request by a labor union representative for all certified payrolls for projects awarded in Christian County from June 2014 to present. The PAC first determined that IDOT failed to respond to the FOIA request within the statutory time frame so was precluded from treating the request as unduly burdensome. It also rejected the unduly burdensome argument, finding that although the review and redaction of these records was a "burden" on IDOT, it did not find that burden to be undue, in light of the public interest in a union having access to these records. 

Post Authored by Julie Tappendorf


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