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Tuesday, August 13, 2019

Amendments to OMA Allow Alternative Training for Municipal Officials

The Illinois Governor just signed legislation making it easier for municipal officials to complete the required Open Meetings Act training. Under current law, all elected and appointed members of public bodies in the state of Illinois must complete the electronic OMA training offered by the Illinois Attorney General within 90 days of taking office. Previous amendments to the OMA authorized  officials in park districts, school districts, drainage districts and others to satisfy the training requirement through alternative programs. Pursuant to P.A. 101-814, an elected or appointed official on a public body of a municipality may satisfy the OMA training requirements by participating in a training sponsored or conducted by an organization that represents municipalities in the state of Illinois. 

Tuesday, August 6, 2019

Public Body Did Not Violate FOIA in Multiple FOIA Requests

The second FOIA case decided last week is Walker v. Bruscato, 2019 IL App (2d) 170775. Walker had filed multiple FOIA requests with the Winnebago States Attorney's Office for records pertaining to his murder indictment. The first request asked for a copy of the grand jury transcript. The second request asked for a "current or previous list of the types and categories of records available for inspection and copying maintained in your office." His third request asked for a copy of the record of indictments in May and June of 2001. His fourth request asked for a copy of the grand jury votes and deliberation for all indictments returned during that same time period. 

The County provided the first requested record and responded to the second request that it had no responsive records. The County denied the third and fourth requests, citing to the confidentiality of grand jury records.  Walker then sued, claiming the County violated FOIA related to all four FOIA requests. The circuit court ruled in the County's favor, and Walker appealed.

The appellate court agreed with the circuit court's ruling in the County's favor. First, the court found that the County did, in fact, provide the transcript in response to the first FOIA request. Second, the court held that Walker had no cause of action under Section 11 of FOIA because he was not "denied access" to any public record since the requested records simply did not exist, stating that "A request for records not yet created is invalid." The court also rejected Walker's argument that the County failed to maintain the list as required by section 5 because the County created the list following Walker's request and subsequently provided a link to that list to Walker. Finally, the court agreed that the grand jury records requested in the third and fourth requests were exempt from release as state law expressly prohibits disclosure of grand jury proceedings. 

Monday, August 5, 2019

Quorum Forum Podcast Episode 29: Avoiding Employment Mistakes

Ancel Glink just released Episode 27 of its Quorum Forum Podcast: Avoiding Employment Mistakes. In this episode, Ancel Glink attorney John Hayes discusses ways employers can avoid common mistakes and law clerk Mike Halpin provides an update on recent employment laws and cases. And, as usual, Ancel Glink partner Dan Bolin keeps the episode lively and entertaining. 

Listen to this episode here.

Thursday, August 1, 2019

Public Body Did Not Violate FOIA Where Requested Records Did Not Exist

We don't see a lot of FOIA cases out of the appellate courts but two were issued yesterday that offer some guidance to public bodies on challenges to FOIA denials.

In Barner v. Fairburn, 2019 IL App (3d) 180742, Barner sued the Canton Police Department after the Department denied his FOIA request for a copy of dispatch transcripts for a particular time-period on May 12, 2015, as well as other police records during that time period. The Department provided a copy of an incident report but not the dispatch recording, stating in its response that the recording was no longer available because the dispatch system only keeps recordings for a few months. Barner sued, claiming the Department violated FOIA because it did not provide the requested records. He also claimed that the FOIA response was insufficient because it did not provide specific reasons for the denial of his request. The circuit court dismissed the case, and Barner appealed. 

On appeal, the Department argued that the dismissal was proper because FOIA does not compel a public body to turn over information the public body does not retain. The Department supported its argument with an affidavit that the FOIA Officer searched for the requested records and was unable to provide the recording because it no longer existed. 

The appellate court agreed with the Department that it did not violate FOIA by failing to turn over records that did not exist at the time of the request, citing to previous cases holding that "The nonexistence of requested documents is a cognizable affirmative defense to a complaint grounded in FOIA." The court also rejected Barner's argument that the Department's response was inadequate because it did not provide a "detailed factual basis" for the denial, holding that this particular requirement of FOIA only applies when the public body is claiming an exemption for a denial.