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Wednesday, February 28, 2018

PAC Interprets Building Plan Exemption in FOIA

Section 7(1)(k) of FOIA exempts architects' plans, engineers' technical submissions, and other construction related technical documents for (1) private projects (i.e., not publicly funded) and (2) public projects "but only to the extent that disclosure would compromise security." 5 ILCS 140/7(1)(k). There are two different views on how to interpret this exemption: (1) does the quoted language apply only to plans for public projects or (2) does the quoted language apply to both private and public project plans. 

The PAC recently issued an advisory opinion providing clarification on this FOIA exemption. In 2013 PAC 26268, the PAC determined that a public body did not violate FOIA when it denied a request for building plans relating to a construction project on residential property of a neighbor to the requester. The requester had argued that the public body could not deny the request unless it demonstrated that disclosure would compromise security. The public body argued that the quoted language only applied to publicly financed projects.

The PAC disagreed with the requester and ruled in favor of the public body, finding that the "compromise security" language only applies to projects constructed with public funds. In this particular case, the plans being requested related to a privately funded construction project, so the public body did not have to demonstrate that release of the requested plans would compromise security. Instead, the PAC determined that the Village properly withheld the plans because "records pertaining to the construction of privately-funded building projects are exempt from disclosure under the plain language of section 7(1)(k) regardless of whether their disclosure would compromise security."

This opinion provides useful guidance to public bodies in applying this FOIA exemption.

Post Authored by Julie Tappendorf

Disclaimer: Ancel Glink represented the public body in responding to the PAC request for review.


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