PAC Issues 8th Binding Opinion on FOIA Challenge
In March 2025, a news
organization submitted a FOIA request to a school district seeking a copy of an
email attachment sent by the school district’s board president to other board
members. The attachment related to a billing dispute between the school district
and its former legal counsel. The school district denied the request citing
various FOIA exemptions.
After the news organization submitted a request for review with the Illinois Attorney General's Public Access Counselor (PAC) challenging the denial of their request, the PAC issued its eight binding opinion of 2025, concluding that the school district improperly withheld the responsive record. PAC Op. 25-008.
First, the PAC determined that the requested record was not exempt from disclosure pursuant to Section 7(1)(m) of FOIA, which exempts attorney-client privileged communications. The PAC acknowledged that billing invoices or statements containing confidential, privileged communications between a public body and its attorney for the purpose of seeking or providing legal advice are protected from disclosure under Section 7(1)(m) of FOIA. The PAC also acknowledged that billing invoices or statements describing the nature of services performed, a public body’s motive for seeking legal representation, or litigation strategy, are also protected from disclosure pursuant to Section 7(1)(m) of FOIA. Here, however, the PAC determined that the contested record was not exempt from disclosure pursuant to Section 7(1)(m) because it did not reveal the substance of matters for which the school district sought legal advice or any legal advice the school district’s former attorneys provided while acting as their legal advisor—rather, the record broadly pertained to a billing dispute between the school district and its former legal counsel.
Second, the PAC rejected the argument that several Illinois Supreme Court Rules of Professional Conduct (Rules) prohibited the school district from disclosing the contested record. Specifically, the PAC found that the Rules apply to and govern the conduct of attorneys, not their clients. In this case, the PAC determined that the Rules do not specifically prohibit public bodies from disclosing non-exempt public records in response to a FOIA request.
Lastly, the PAC found that the contested record was not exempt from disclosure pursuant to FOIA’s deliberative process exemption in Section 7(1)(f) of FOIA because the record did not reflect deliberations with a third party acting on the school district’s behalf. Instead, the PAC opined that the contested record was a communication to the school district from its former legal counsel, which, in that correspondence, was acting with independent interests that were not aligned with the school district’s interests at the time it received the correspondence.
Post Authored by Eugene Bolotnikov, Ancel Glink
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