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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Friday, January 17, 2020

Bill Would Authorize Library Districts to Impose Cannabis Tax


The recent legalization of recreational cannabis in Illinois was tied to the imposition of a number of new taxes imposed at the state, county, and municipal level. A recent bill, if passed, would also authorize library districts to impose their own 1% tax on the sale of recreational cannabis. HB 4135.  

If a library district imposes such a tax, the bill mandates that any applicable tax imposed by the county in which the library district is located be reduced by 1% and that all municipalities in the county in which the library district is located must also reduce their cannabis tax by 1%. 

That mandatory reduction in county and municipal cannabis taxing authority is likely to raise some concerns with those governmental units that have already enacted a county or municipal cannabis tax, particularly since the proposed legislation is written so broadly as to seem to apply to all municipalities in the county in which the library district is located, without regard to where the library district is located. 

Wednesday, January 15, 2020

Illinois Supreme Court Upholds Settlement Agreement Disclosure under FOIA



Last month, the Illinois Supreme Court held in Rushton v. Department of Corrections, 2019 IL 124552, that a settlement agreement between a private healthcare provider who contracted with the state to provide medical services to prison inmates and the estate of an inmate who died is subject to the Freedom of Information Act.

A journalist for the Illinois Times filed a FOIA request with the Illinois Department of Corrections (DOC) seeking settlement agreements involving the death of a former inmate at Taylorville Correctional Center, including those that involved private entities who were charged with providing health care to the decedent; one being Wexford Health Sources, Inc. Wexford contracts with the DOC to provide medical care to inmates. The DOC obtained a redacted version of the agreement from Wexford, and the DOC provided it to the requester.

The journalist and the Illinois Times filed a complaint against the DOC seeking an unredacted copy of the settlement agreement. The trial court ruled in favor of Wexford, holding that the agreement was  not a public record because it was not “directly related” to the private company's provision of medical services for the DOC under Section 7(2) of FOIA. The trial court did not rule on the issue of whether any of the redactions in the agreement were proper. The requesters appealed and the appellate court reversed in their favor, finding that the agreement was a public record because it “directly related” to the governmental function that it performed for the DOC because it involved the settling of a claim arising out of its rendering of medical care. Wexford then appealed to the Illinois Supreme Court.

On appeal, the Illinois Supreme Court held that the agreement was subject to disclosure under FOIA. First, the Court found that Section 2.20 of FOIA expressly provides for the release of settlement agreements involving private entities. The Court reasoned that the legislature’s enactment of Section 2.20 was intended as a clarification for public bodies that settlement agreements are public records subject to disclosure. Next, the Court analyzed whether Wexford had contracted with the DOC to perform a governmental function on its behalf and, if so, whether the requested settlement agreement directly related to that governmental function. The Court determined that since the State has a constitutional and statutory duty to provide healthcare to inmates, and that the DOC contracted with Wexford to perform this governmental function on its behalf, the Court found that the settlement agreement “directly related” to the performance of the governmental function of rendering medical care to inmates, such as the decedent, and is subject to disclosure under Section 7(2) of FOIA. In other words, Wexford “stood in the shoes of the DOC” when it rendered medical care to the decedent.

This case provides guidance to local governments and its private contractors that perform services related to a governmental function, that settlement agreements may not be shielded from public inspection because of the presumption of openness under FOIA. Nonetheless, local governments should be diligent in reviewing the agreements and redacting them as necessary.

Post Authored by Ashton Tunk & Julie Tappendorf, Ancel Glink

Tuesday, January 14, 2020

Bill Would Require All Elected and Appointed Officials to Wear Body Cameras


There are inevitably a few bills introduced in the Illinois legislature each year that are bound to raise an eyebrow or two. Last week, HB 4065 was introduced in the Illinois House that would create the Public Official Body Camera Act. 

If passed, the new law would require all public officials (elected and appointed) in the state to wear body cameras whenever officials are engaged in official duties. The recordings would be exempt from FOIA but would not be exempt from use in legislative, administrative, or other proceedings. Incredibly, the bill contains no exceptions to when the camera should be turned off, so presumably the camera would be rolling even during closed session meetings, when officials consult with attorneys, when officials are dealing with sensitive personnel matters, and in other circumstances where privacy or confidentiality interests might be present. Oddly, the bill gives the State Board of Elections the jurisdiction to adopt rules in furtherance of the new requirements. The bill says nothing about funding for this state mandate that would require the state and all other units of government in the state to outfit all elected and appointed officials with body cameras.

We'll keep you posted on this proposed legislation but have a feeling this bill may not go very further.

Monday, January 13, 2020

Illinois Supreme Court Strikes Down Chicago Tax on "Other Tobacco Products"



Chicago received a lump of coal days before Christmas as the Illinois Supreme Court invalidated a 2016 city-wide tax on "other tobacco products" (such as e-cigarettes) in Iwan Ries & CO. v. City of Chicago. 

The Illinois Municipal Code allows not preempt a home rule municipality to impose a tax on 
the number of units of cigarettes or tobacco products (provided, however, that a home rule municipality that has not imposed a tax based on the number of units of cigarettes or of units of cigarettes or tobacco products before July 1, 1993, shall not impose such a tax after that date). 65 ILCS 5/8-11-6a
A group of plaintiffs with ties to the tobacco-product industry filed a complaint against the City for levying the tax. The circuit court ruled in favor of the plaintiffs,  finding that the tax violated state statute, specifically Section 8-11-6a of the Illinois Municipal Code. 

On appeal to the Illinois Supreme Court, plaintiffs argued that the City's tax exceeded its statutory powers because the Illinois Municipal Code preempts the imposition of new taxes on tobacco products after July 1, 1993 after the General Assembly passed section 8-11-6a as an amendment to the municipal code to consolidate tax revenue from tobacco and other tobacco products into the state's coffers. The General Assembly did, however, carve an exception for existing tobacco taxes passed by municipalities with home rule authority but Plaintiffs argued that the City's tax on "other tobacco products" was a new tax in violation of this statute.

The City argued that section 8-11-6a "grandfathers certain municipalities—those that previously imposed taxes based on the number of units of cigarettes or tobacco products sold—and not certain taxes."  In the City's view, the General Assembly tried to strike a balance between collection of revenue by state tobacco taxes and home rule authority under state law.

Although sympathetic to the public policy ramifications of the loss of potential tax revenue from growing demand in other tobacco products, the Illinois Supreme Court sided with the plaintiff's argument, finding that the plain statutory language demonstrates the "legislative intent to prohibit future municipal taxes on cigarettes or other tobacco products unless the tax was enacted before July 1, 1993."

Post Authored by Mike Halpin and Julie Tappendorf, Ancel Glink

Friday, January 10, 2020

Court Upholds Village's Denial of Zoning Variances to Subdivide Property into 3 Lots


It's not often that we see zoning cases out of the Illinois appellate court. Recently, an appellate court upheld a trial court's decision in favor of a municipality in a zoning challenge. First American Bank v. Village of Wilmette, 2019 IL App (1st) 181436

The owner of land filed an application with the Village seeking zoning variances to allow the subdivision of their property (consisting of 37,969.42 square feet in area) into 3 lots. The variances were needed because the newly created lots did not comply with the 60 foot lot width requirement and would not have street frontage. The ZBA held a public hearing on the proposed variances and recommended 4 to 2 in favor of the variances. The Village Board, however, denied the requested variances by a vote of 5 to 1. The owner then filed a lawsuit to challenge the denial, claiming the denial of the variances was arbitrary and capricious. 

At the circuit court level, the judge held a bench trial, hearing evidence from the owner's planning  and civil engineer consultants, as well as the owner and an appraiser. The Village presented its own witnesses, including planning experts, the fire chief, and public works director. After hearing from all witnesses, the court ruled in favor of the Village, finding that the denial of the variances was not arbitrary or capricious. The owner then appealed.

The appellate court first acknowledged that the review of the Village's variance denial was subject to the LaSalle factors test. Applying those factors to the plaintiffs' case, the appellate court agreed with the trial court that the Village's decision was not arbitrary or capricious. Specifically, the Village had identified a number of concerns if the variances were granted and development were allowed. the court also noted that the plaintiffs were still able to use their property profitably. In sum, the Village's denial of the zoning variances was upheld.

The case provides helpful guidance to municipalities in how a court will apply the LaSalle factors in a zoning challenge.

Thursday, January 9, 2020

Names Exempt From FOIA When Tied To Personal Information


An Illinois Appellate Court recently held in favor of a public body in a FOIA challenge after the public body denied a request for the names of students who received MAP grants. Timpone v. Illinois Student Assistance Commission.

Timpone filed a FOIA request with the Illinois Student Assistance Commission requesting the names of all students who received a State of Illinois Monetary Award Program (MAP) grant in 2015. ISAC provided a spreadsheet aggregating 2015 MAP grants by city and the dollar amounts and number of recipients but denied Timpone's request for the students' names, citing personal privacy protections under 7(1)(a) and 7(1)(b) of FOIA. Timpone then sued, and the circuit court ruled in his favor and ordered ISAC to release the names.

ISAC appealed to the appellate court which reversed the circuit court's ruling in Timpone's favor. First, the appellate court agreed with ISAC that the names of the students who received grants qualified as "personally identifiable information" that was protected under state regulations pertaining to the confidentiality of grant applicants and participants. Second, the appellate court also agreed that the names of students were protected under the "private information" FOIA exception in 7(1)(b) because personal financial information is "universally presumed to be private, not public." The court rejected Timpone's argument that "names, by themselves are not private" finding that the students' names were tied to grant amounts (i.e., personal financial information) that, if released, would invade the students' privacy rights. 

In short, the appellate court determined that ISAC did not violate FOIA in denying a request for release of the names of students who received MAP grants since release of that information was confidential and exempt from release.

Wednesday, January 8, 2020

Supreme Court Refuses to Hear Homeless Sanctions Case


Last month, the U.S. Supreme Court refused to hear an appeal from a Ninth Circuit ruling that prohibited local governments from imposing criminal sanctions against homeless individuals for sleeping outdoors on public property when no alternative shelter is available to them.

The Supreme Court’s decision to let the Ninth Circuit ruling stand came without comment or noted dissent from the justices and is the latest development in a case that has been ongoing for nearly a decade. The case, Martin v. Boise, originates from a constitutional challenge to ordinances enacted by the City of Boise which make it a crime for individuals to sit, sleep, or lay on public sidewalks. In its defense of the ordinances, the City of Boise contended that the ordinances were essential in curbing crime, violence, disease, and other environmental hazards which stem from individuals living on the streets and the public at large.

The Ninth Circuit rejected the City of Boise’s argument and held that the Eighth Amendment’s ban against cruel and unusual punishments “prohibits the imposition of criminal penalties for sitting, sleeping or lying outside on public property for homeless individuals who cannot obtain shelter.” In its reasoning, the Court noted that the state may not criminalize involuntary conduct that is an unavoidable consequence of homelessness, and as such local governments may not prosecute homeless people for sleeping outdoors on the “false premise” they had a choice in the matter to begin with. Further, the Court stated that its holding is a narrow one, and that the decision only applies in circumstances in which the number of homeless individuals within City limits is greater than the number of available beds in shelters.

Although the Ninth Circuit’s ruling is not binding in Illinois, the Supreme Court’s decision not to hear the case has widespread implications on the homeless epidemic from Alaska to Arizona that local governments should be careful not to "punish" homeless people for sleeping in public when there are no available shelter alternatives.

Post Authored by Rain Montero & Julie Tappendorf, Ancel Glink

Tuesday, January 7, 2020

PAC Wades into Records Retention Territory in 13th Binding Opinion of 2019


On the last day of 2019, the Illinois Public Access Counselor (PAC) office issued its 13th binding opinion for 2019. Unfortunately, the opinion was uploaded to the Attorney General's website after we posted our summary of 2019 FOIA opinions was published, so we are summarizing it separately. 

In PAC Op. 19-013, the PAC found a public body in violation of FOIA for not providing a tape of a gathering of public officials. The public body denied the request based on its opinion that because there had been no quorum of the public body at the gathering, there was no meeting so the tape was not a public record subject to FOIA and did not need to be released. The public body had also apparently erased the tape. The requester filed an appeal with the PAC, and the PAC determined the tape was a public record under FOIA because the public body members discussed public business at a "gathering" of 3 members of the 7 member body. As a result, the PAC stated the tape should have been released upon request. 

The PAC also found the public body in violation of FOIA because it had erased the tape after a FOIA request was received. This appears to be the first time the PAC has interpreted FOIA to incorporate a records retention obligation (which is expressly a part of the Local Records Act). This is a significant development in the interpretation and application of the FOIA statute and appears to stretch FOIA (and, therefore, the PAC's jurisdiction and authority) beyond records release and fully into records retention territory. The PAC supported its newly granted authority by citing cases from other states. The one Illinois case the PAC did cite actually referred to the retention provisions of the Local Records Act and State Records Act to supports the court's discussion of a public body's obligation to retain public records. In my opinion, it seems inappropriate for the PAC (rather than a court) to interpret FOIA in a manner that appears to expand its jurisdiction beyond what the General Assembly intended.  

Monday, January 6, 2020

Ring in the New Year Quorum Forum Podcast 33


Happy New Year from Municipal Minute! And to welcome you to 2020, we've put together a brand new Quorum Forum Podcast Episode 33: Ring in the New Year,

In this episode, Quorum Forum podcast welcomes Ancel Glink’s Adam Simon to celebrate the new year and Ancel Glink's recent appellate court victory helping municipalities correctly collect cable franchise fees. Then, we ring in 2020 by taking calls and answering questions about public employees, public comment, cannabis, and more. 

What questions are you facing in the new year? Leave us a voicemail at 312.604.9178, or email us at podcast@ancelglink.com


Friday, January 3, 2020

Summary of PAC Binding Opinions of 2019 (FOIA opinions)



Today, we summarize the 2019 Public Access Counselor binding opinions relating to FOIA complaints.

PAC Op. 19-001 (body camera recordings must be released)
In PAC Op. 19-001, the PAC found the Chicago Police Department in violation of FOIA for denying a request for body camera recordings. The PAC rejected the CPD’s argment that the Body Camera Act prohibited release of body camera recordings unless the recording had been previously "flagged." Specifically, the PAC noted that the Body Camera Act allows disclosure of recordings under FOIA in certain limited circumstances.  First, a recording can be released if it is "flagged" because of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death or body harm. Second, a recording can be released to the subject, the subject's attorney, the officer, or the officer's representative. The PAC rejected CPD's argument that the latter exception also required prior "flagging," finding that the statute did not include that language when allowing release to certain individuals.

PAC Op. 19-003 (failure to respond)
In PAC Op. 19-003, the PAC found a public body in violation for FOIA for failing to respond to a FOIA request. As we have learned from a number of similar binding opinions, it is a violation of FOIA to not respond to a FOIA request within the statutory time-frame (5 business days unless the request is for commercial purposes).
PAC Op. 19-005 (calendars)
In PAC Op. 19-005, the PAC found a Police Department in violation of FOIA for denying a request for release of "extradition calendars." CPD personnel who work in the field services section on prisoner extradition matters put together a working schedule calendar containing various assignments to assist the officers and their supervisors in keeping track of court dates and related activities in the department. In response to a FOIA request for a copy of the calendar, the CPD denied the request, citing 7(1)(f), which exempts draft or predecisional documents from release.  The CPD argued that the calendar was created by the officers, not the CPD itself, and that the calendar was constantly updated based on evolving schedules. The requester filed an appeal with the PAC, which rejected the CPD's basis for denial, finding the extradition calendar to be releasable under FOIA. Specifically, the PAC stated that because the calendar was purely factual in nature, it did not fall under the "deliberative process" exemption under 7(1)(f).

PAC Op. 19-006 (failure to respond)
In PAC Op. 19-006, the PAC issued an opinion finding a municipality in violation of FOIA for failing to respond to a union's FOIA request for various records pertaining to a bargaining unit and finances of the municipality. Not only did the municipality fail to respond to the FOIA request, it also did not respond to the PAC's request for review.

PAC Op. 19-007 (proprietary business records)
In PAC Opinion 19-007, the PAC found a public body in violation of FOIA when it refused to hand over manganese reports of a business entity in response to a FOIA request. The city had denied the request, claiming that the reports contain sensitive business information that fell under section 7(1)(g) of FOIA’s exemption for proprietary commercial information. The PAC rejected the city’s argument arguing that the city failed to provide any evidence that the disclosure of the information would cause competitive harm to the private business entity. The PAC reasoned that no substantive business insights would result from the disclosure of the reports, which contain, among other things, how the materials are transported in and out of the facility, its density and percentage of manganese, and the amounts shipped, received, and stored. Because the city failed to articulate specific facts demonstrating the competitive harm to the private entity that would result from disclosing the limited information reports, the PAC ordered the city to comply immediately with the FOIA request for the manganese reports.

PAC Op. 19-08 (police reports)
In PAC Op. 19-008, the PAC found a police department in violation of FOIA when it redacted portions of its police reports. A news reporter submitted a FOIA request to a city police department (“PD”) seeking police reports concerning the arrests of two individuals. The PD subsequently provided him copies of the records, but redacted certain information from those records pursuant to Sections 7(1)(b) (private information), 7(1)(c) (unwarranted invasion of personal privacy), 7(1)(d)(iii) (deprivation of fair trial or impartial hearing), and 7(1)(d)(iv) (disclosure of confidential sources or witnesses) under FOIA. The PAC rejected the PD’s arguments, finding it did not meet its burden to justify use of these exemptions. 
PAC Op. 19-010 (body camera recordings)
In PAC Op. 19-010, the PAC found a city in violation of FOIA for denying a request for body camera recordings. relating to an attempted arrest. The city cited the Law Enforcement Officer-Worn Body Camera Although the city and states attorney provided detailed reasons why release of the recordings would interfere in the ongoing criminal investigation, the PAC determined that the city's burden to justify withholding the records was not satisfied. The PAC also rejected the city's reliance on the exemption set forth in the Law Enforcement Officer-Worn Body Camera Act and ordered release of the recording.

PAC Op. 19-011 (failure to respond)
In PAC Op. 19-011, the PAC found a county assessor's office in violation of FOIA for failing to respond to a FOIA request for permit applications relating to five properties. The county failed to respond to the request or to the PAC's request for review. 

Thursday, January 2, 2020

Summary of PAC Binding Opinions of 2019 (OMA opinions)



As we do every year, we are summarizing the Public Access Counselor binding opinions for 2019. Today's post will summarize the opinions that relate to Open Meetings Act complaints and tomorrow we will summarize the FOIA-related opinions.

PAC Op. 19-002 (public comment period restriction without rules)
In PAC 19-002, the PAC found a school district in violation of the Open Meetings Act when it restricted the public comment period at a school board meeting to 15 minutes without having an established and recorded public comment rule to that effect. The PAC reviewed the District's "Board Policy Manual" which did include a limit on public comment at meetings of 3 minutes per person. However, the PAC noted in its opinion that the school board's manual did not include a reference to a 15 minute total cap on public comment. PAC rejected board’s argument that past practice authorized the restriction.

PAC Op. 19-004 (public recital)
In PAC Op. 19-004, the PAC found a public body in violation of the Open Meetings Act for failure to provide an adequate public recital of the business being conducted before taking final action on a resolution. A school district board voted on "Resolution 2019-1 authorizing a Notice to Remedy." Shortly thereafter, a newspaper reporter filed a complaint with the PAC arguing that the board did not give any public details about the resolution prior to voting on it. The PAC contacted the school board for a response, and the school board provided copies of the agenda, minutes, closed session recording, resolution, and the "Notice to Remedy." The school board attorney explained to the PAC that the resolution number and title were read aloud prior to the board voting on the resolution, as reflected in the minutes of the meeting. Nevertheless, the PAC found that in this case, the school board violated the OMA because it failed to disclose enough detail about the resolution prior to voting on it, including disclosing the name of the teacher being served with the Notice to Remedy).

PAC Op. 19-009 (resident only restriction during public comment)
In PAC Op. 19-009, the PAC found a city in violation of the Open Meetings Act for prohibiting a member of the public from addressing the city council at a council meeting because she was not a city resident. The PAC first noted that the city council had not adopted public comment rules so the council could not impose a restriction on public comment. The PAC rejected the city's reliance on Roberts Rules of Order as its public comment rules since the city could not identify specific rules addressing public comment at meetings. Since it had no rules in place, the city council could not impose a "resident only" restriction. But, even if the city council had adopted a "resident only" rule for public comment, the PAC stated that such a rule would violate the OMA because the public comment requirement of the OMA allows "any person" to address the public body, whether they are a resident or not.