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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

Monday, August 1, 2022

PAC Says Resumes of Candidates for Elected Office Are Releaseable Under FOIA

The Public Access Counselor of the Illinois Attorney General's office (PAC) just issued its 11th binding opinion of 2022 finding a public body in violation of FOIA for failing to provide copies of the applications submitted by candidates for appointment to fill a vacant elected office. PAC Op. 22-011,

In April, an individual filed a FOIA request with a village seeking the names and applications of the candidates for a vacancy to the village board. The village denied the request, citing three FOIA exemptions including that the applications were exempt from release as private information, that release of the information would be an invasion of personal privacy of the candidates, and that the documents contained information that expresses policy or opinions. The village also argued that the records were not public records because the village president had not shared the applications with the village board. Ultimately, the village did release the application for the candidate who had been appointed to fill the vacancy but continued to withhold the applications submitted by the other candidates. The requester filed a request for review with the PAC.

The PAC rejected the village's argument that the unsuccessful candidates' applications were either (1) not public records or (2) exempt from release. First, the PAC found that the records were public records since they were in the possession of the village president and were used by the president in deciding who to appoint to fill the vacancy on the villagea board. Second, the PAC determined that the public's right to access information about candidates for elected office (and those considered for appointment to fill an elected office) outweighs any diminished right of privacy the candidates might have to their potential appointment to the village board. The PAC distinguished the privacy interests of candidates for elected office (who have a diminished right to privacy) with unsuccessful candidates for public employment (who have a privacy interest in not having their candidacy disclosed to the public because of the potential negative impacts in the community and with their current employment). Finally, the PAC rejected the village's argument that the records were used to "formulate policy" finding that the work history and educational background of the candidates for appointment to elected office are purely factual in nature. 

In short, the PAC determined that the resumes and other information about candidates for elected office (or appointment to fill a vacancy in an elected position) are releasable under FOIA. 

Friday, July 29, 2022

School Board Members Blocking of Parents on Social Media Violated First Amendment

We have reported in the past about the potential implication of the First Amendment when public officials engage on social media. Not all conduct or activities by public officials will trigger First Amendment protections and rights, but when a public official creates a public forum on social media and then takes action that censors protected speech, courts have held that this action violates the First Amendment. Recently, the Ninth Circuit Court of Appeals addressed this issue in a First Amendment challenge involving two school board members, finding the two officials had violated the First Amendment rights of individuals who they censored on their social media sites. Garnier v. Ratcliff, 9th Cir. July 27, 2022

The two school members had initially set up social media sites for their campaigns. After they took office, they used those same social media pages to engage with citizens about school board matters. On their pages, they informed citizens about upcoming school board meetings, solicited input about board decisions, and communicated with parents about school safety and other pending issues. Two parents who frequently posted critical comments on the school officials' pages, had their posts deleted by the school board members. Eventually, both school officials blocked the parents from their pages. Shortly after the parents were blocked, the school officials set up a word "filtering" setting on their pages that blocked a number of commonly used words that, in effect, eliminated any comments from their pages.

The parents sued, claiming that the deletion of their critical comments and blocking from the school officials' pages violated their First Amendment rights. The school officials first argued that their social media pages were not a public forum, so they were not acting as "state actors" for purposes of a civil right action. They further argued that even the pages were a public forum, their blocking of the parents was a reasonable time, place, and manner restriction. Finally, they argued that by establishing a word filtering setting that blocked all comments they had effectively "closed" the public forum, so the lawsuit was moot.

First, the court rejected the school officials' argument that the case was moot, finding that the closing of a public forum does not "cure" a previous First Amendment violation.

Second, the court found that the two officials were acting as "state actors" when they were engaging on their social media pages. Nearly all of their activities on their pages related to their school official duties, they identified themselves as school officials, engaged with constituents about school board business, and regularly posted about school board business. The court acknowledged that other circuit courts of appeals had similarly found activities and conduct similar to these two officials to have created a public forum that would trigger First Amendment protections, including cases involving a Facebook page set up by the Loudoun County commissioner, former President Trump's Twitter account. Here, the court determined that the officials' had created a designated public forum on their social media sites and their activities in deleting critical comments and blocking critical commenters violated the First Amendment because it did not serve a significant government interest and was not narrowly tailored.

This case is definitely worth a read for government officials who engage in social media activities related to their government duties because it provides a detailed analysis of when a personal social media page and activities can convert into government action triggering the First Amendment.

Wednesday, July 20, 2022

City's Citation for Business License Violation Upheld by Court

Recently, an Illinois Appellate Court upheld a circuit court's ruling in favor of a City's administrative decision imposing a fine against a parking lot owner for failure to obtain a business license. 895 Wood Dale LLC v. City of Wood Dale.

The owner of a commercial parking lot applied for a City business license, but the City refused to issue the license because the parking lot did not comply with the City's landscaping requirements contained in its zoning code. The City then cited the parking lot owner for operating its business without a business license, and the City's administrative hearing officer imposed a $500 fine. The owner filed a lawsuit to challenge the City's administrative decision, and the circuit court upheld the hearing officer's determination. 

On appeal, the parking lot owner argued that the City was "estopped" from enforcing the landscaping requirements of the City's zoning ordinance because the City had previously issued permits for the parking lot and had not required the landscaping at that time, had not informed the plaintiff of the landscaping requirements when the City inspected the improvements. The owner argued that it had relied on the City's inspection and permitting approvals and the City should not be allowed to enforce its landscaping requirements to hold up its business licensing. 

The Appellate Court rejected the owner's arguments and upheld the City's administration decision against the parking lot owner. The Court noted that the mere fact that a permit had been previously issued by the City does not preclude the City from enforcing its code and requiring a property to comply with code requirements. The Court also determined that the costs the owner would incur in complying with the landscaping requirements are not the type of losses that trigger equitable estoppel because the owner was always obligated to follow the code requirements. In sum, the Court determined that the owner failed to establish its equitable estoppel argument, so the City's administrative decision was proper.

Tuesday, July 19, 2022

Fourth District Interprets FOIA Attorneys' Fee Provision

In response to a three-part FOIA request submitted to a City in January 2020, the City responded two weeks later that it did not possess responsive records to part 1 of the request, that part 2 was unduly burdensome, and that part 3 was “vague and ambiguous.” In response, the requestor asked to confer with the City to reduce his allegedly burdensome request to manageable proportions and requested the City to perform another search for responsive records. Several weeks later, the City produced one record responsive to part 2 of the request. 

The requestor filed a lawsuit against the City alleging that the City (1) violated FOIA by failing to timely produce non-exempt public records to his request, (2) failed to perform an adequate search for responsive records, and (3) willfully, intentionally, or otherwise in bad faith violated FOIA. After the lawsuit was filed, the City agreed to conduct an additional search and produced certain records to the requestor. The trial court ruled in favor of the City finding that the City performed an adequate search for requested records, that the City properly classified part 2 as burdensome and the request failed to reasonably identify records sought for part 3, and that the City did not willfully or intentionally violate FOIA or otherwise act in bad faith in responding to the request.

On appeal, the Fourth District Appellate Court in Martinez v. City of Springfield determined that the trial court erred when it failed to award attorneys fees to the requestor under FOIA section 11(i). The Fourth District held that the requestor “prevailed” in its FOIA lawsuit because the City produced the requested records after the lawsuit was filed. The Court agreed with the requestor that a court order is not a prerequisite to an award of attorney fees under FOIA. Since the City failed to comply with the statutory deadline and only produced responsive records after the lawsuit was filed, the Court remanded the case back to the trial court to hear arguments on the reasonableness of requested attorney fees.

The Fourth District acknowledged that there is some disagreement among the Appellate Districts on the issue of when a plaintiff has "prevailed" in a FOIA lawsuit to trigger the attorneys' fee provision of FOIA. The Fourth District noted that the Second District holds that a plaintiff is entitled to attorneys' fees under 11(i) only if there is a court order in the plaintiff's favor in the FOIA lawsuit. So, if the requested records are provided while the FOIA lawsuit is pending, a plaintiff cannot have "prevailed" in that lawsuit for purposes of an attorneys' fee award under Section 11(i), at least not in the Second District. On the other hand, the First and Fifth Districts hold that the attorneys' fee provision of FOIA can be triggered even without a court order, meaning a plaintiff could have "prevailed" in his or her FOIA lawsuit even if the public body provides the records while litigation is pending. In this case, the Fourth District joined the First and Fifth Districts, holding that a court order is not required for a plaintiff to "prevail." 

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

Thursday, July 14, 2022

PAC Finds Board in Violation of OMA for Closed Session Discussion

The PAC issued its 10th binding opinion of 2022 this week finding a public body in violation of the OMA for exceeding the scope of permissible topics in closed session. PAC Op. 22-010

At one of its meetings, a school district board went into closed session for 3 separate topics. Following the meeting, a request for review was filed with the PAC challenging the closed sessions as exceeding the topics allowed by the OMA. The PAC listened to the recordings of the three closed sessions and determined that two of them were within the scope of the OMA's permissible topics for closed session. However, the PAC determined that one of the three closed sessions exceeded the board's authority under the OMA. Specifically, the PAC noted that the topic discussed in this closed session involved discussions about student transportation bids and contracts, which were not a permissible topic for closed session. The PAC rejected the board's argument that the discussion related to probable or imminent litigation or a criminal investigation. The PAC ordered the board to release the recording and minutes relating to this particular discussion.

Tuesday, July 12, 2022

Court Finds No Common Law Dedication of Detention Pond to City

An Illinois Appellate Court recently ruled in favor of a municipality in a dispute between the municipality and homeowners as to the ownership and responsibility over a detention pond on the homeowners properties. Reich v. City of Lake Forest. 

Two adjacent property owners filed a lawsuit against the City claiming that the detention pond that straddles their two lots had previously been dedicated to the City through a "common law" dedication when the subdivision was first built and, as a result, the City was responsible for maintaining the pond. The City argued that there was no evidence that the developer of the subdivision intended to dedicate the pond to the City, nor any evidence that the City ever accepted the pond as a public improvement. The circuit court ruled in favor of the City, finding no evidence of dedication where neither the plat of subdivision nor the subdivision agreement referenced the dedication of the pond to the City. The court also noted that the City had not taken any action to maintain the pond over the years. On appeal, the appellate court agreed and upheld the ruling in favor of the City, finding no evidence that the developer of the subdivision had any intent to dedicate the pond to the City. Because the court found no evidence of donation, it did not address the issue of whether the City accepted the pond because the court noted that there can be no common law dedication in the absence of donative intent.

Disclaimer: Ancel Glink represented the City in this lawsuit and appeal.

Monday, July 11, 2022

PAC Issues Binding Opinion on FOIA Denial of Request for Union-Related Records

In January 2022, an individual submitted a FOIA request to a municipality asking for the names, work addresses, work e-mail addresses, job titles, hire dates, department names and union membership information for each City employee covered by the collective bargaining agreement with SEIU Local 73. The City denied the request pursuant to FOIA exemption 7.5(zz), which exempts from disclosure information prohibited from being disclosed by the Illinois Public Labor Relations Act (IPLRA). Specifically, the City asserted that sections 6(c-5), 10(a)(8), and 10(a)(9) of the IPLRA prohibited disclosing information responsive to the FOIA request.

After the requestor appealed the denial, the PAC issued PAC Op. 22-009, which concluded that the City properly denied the FOIA request pursuant to FOIA exemption 7.5(zz).

The PAC noted that Section 6(c-5) of the IPLRA expressly prohibits disclosing any information personally identifying employee membership or membership status in a labor organization or other voluntary association affiliated with a labor organization or a labor federation, including whether employees are members of such organization or the identity of the organization.

While a public body's staff roster, employee business addresses, and public body-issued e-mail accounts are not generally exempt under FOIA, in this case, the PAC noted that the FOIA request to the City only requested information about employees covered by the City's collective bargaining agreement with SEIU Local 73. The PAC determined that providing responsive records that confirmed whether specific City employees are within a bargaining unit represented by SEIU Local 73 would necessarily reveal the identity of the organization and information concerning employee membership or membership status, in direct contravention of the IPLRA.

Although the requestor argued that identifying which employees are in a particular bargaining unit does not indicate whether they are union members, the PAC rejected this argument, noting that the FOIA request specifically sought each employee’s union.

The PAC also noted that an employee's ability to bring an unfair labor practice charge before the Illinois Labor Relations Board or file suit in circuit court against an employer for disclosing employee information in violation of section 6(c-5) underscores the mandatory nature of the provision, which was intended to insulate employees from third party communications concerning their union membership status.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, July 5, 2022

Agenda Did Not Adequately Describe Action Items as Required by the OMA

In binding PAC Opinion 22-008, the PAC found a Farm Committee (Committee) of a County Board (Board) in violation of the OMA when it voted on two resolutions without adequately describing the actio items on the Committee's meeting agenda.

In April 2022, an individual submitted a request for review with the PAC, alleging that the Committee violated the OMA by voting to approve two resolutions to (1) hire a person to obtain crop insurance and (2) borrow money for crop expenses without listing either item on the Committee’s April 7, 2022 meeting agenda. In response to the PAC, the Committee asserted that item 3 of its April 7, 2022 meeting agenda, which stated “[d]iscussion and vote on recommendation to the County Board regarding farming options for the County Farm," provided sufficient advance notice of its final actions.

The PAC concluded that the Committee violated section 2.02(c) of the OMA by taking final action on the two resolutions without describing the general subject matter of those actions on the April 7, 2022 meeting agenda. Although the PAC acknowledged that the term general subject matter is inherently ambiguous and has not been "precisely" defined by the OMA or Illinois courts, the PAC stated that section 2.02(c) requires that a public body’s agenda include sufficient detail to notify members of the public about the types of final actions a public body anticipates taking. Here, the Committee took final action by recommending that the Board (1) attain crop insurance and (2) borrow money for crop expenses, but the PAC found that the agenda for the Committee’s meeting failed to list the general subject matter of either of those action items.

The Committee argued that even if it violated the OMA at its April 7, 2022 meeting, the Board cured its violation by considering and voting on the Committee's recommendations at its April 14, 2022 meeting. In response, the PAC rejected this argument, reasoning that because the Committee and the Board are separate public bodies for the purpose of complying with OMA requirements, the Board's actions at its April 14, 2022 meeting did not cure the Committee's violation of OMA at its April 7, 2022 meeting. That being said, because the Board already considered and voted on the Committee's recommendations, the PAC did not see a legal or practical reason for the Committee to prepare a new agenda and re-vote on its final actions.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, June 28, 2022

Attorney General Issues Opinion on Pension Forfeiture for Former State Representative

Last week, the Illinois Attorney General issued an opinion responding to a question about pension forfeiture. Att'y Gen Op. 22-001. (Note that this opinion is not issued by the PAC office and is unrelated to that office's duties relating to OMA and FOIA).

The opinion was in response to a question raised by the General Assembly Retirement System (which deals with pension benefits for General Assembly members) as to whether former state representative Arroyo's guilty plea for felony wire fraud charges requires forfeiture of his pension benefits. 

The Attorney General looked at Section 2-156 of the Pension Code which requires the forfeiture of retirement annuities and other pension benefits if a member is convicted of a service-related felony, as follows:

None of the benefits herein provided for shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his or her service as a member.

The Attorney General noted that the purposee of the felony forfeiture provision was to discourage official mimsconduct by denying retirement benefits to public servants convicted of violating the public trust.

In applying this section of the Pension Code to the former representative's guilty plea, the Attorney General determined that his guilty plea for wire fraud "related to, arose out of, or was in connection with his official duties as a State Representative." Specifically, the Attorney General noted that the former representative's criminal conduct occured while he was a member of the state house, and the underlying facts of the offense demonstrated that he used his position as a state representative to obtain financial benefit for himself when he accepted monetary payments in exchange for a promise to vote in favor of legislation to legalize sweepstakes gaming machines.  

Monday, June 27, 2022

Inmate Not Entitled to Fees and Costs under FOIA

An inmate at a correctional center made several FOIA requests to the Illinois Department of Corrections (IDOC) seeking his medical records and copies of administrative rules. IDOC initially denied the requests for medical records because the inmate failed to follow IDOC’s administrative policy. IDOC also initially denied the inmate’s copies for certain administrative rules based on FOIA exemptions.

The inmate sued IDOC alleging that (1) his medical records were withheld in violation of FOIA and (2) that the inmate was entitled to recover costs and penalties. The circuit court dismissed the inmate’s lawsuit, finding that the inmate’s medical records were exempt from disclosure until the inmate eventually followed IDOC’s administrative procedures and that the inmate was not entitled to penalties and costs. The court also directed IDOC to provide updated copies of the administrative rules originally requested by the inmate because the inmate was being relocated to another facility that did not possess copies of the updated administrative rules at issue. On appeal, the inmate solely claim that the circuit court erred by denying his request for fees and costs under FOIA.

In Watson v. Illinois Department of Corrections, the Appellate Court upheld the circuit court’s denial of fees and costs to the inmate, finding that the inmate did not prevail in his lawsuit. The Appellate Court noted that the circuit court granted IDOC’s motion to dismiss because the inmate was not entitled to the requested medical records under FOIA, which is an adverse judgment against the inmate. Although the circuit court had directed IDOC to produce updated copies of certain administrative rules, the Appellate Court clarified that the circuit court had denied the inmate’s claim that he was entitled to these documents on its merits. As a result, the Appellate Court upheld that circuit court’s decision to deny the inmate’s request for costs under FOIA section 11(i).

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, June 21, 2022

Seventh Circuit Remands Case Relating to Right to Bear Arms T-Shirts in Schools

The Seventh Circuit Court of Appeals recently issued an interesting opinion on students right to free speech in the context of school clothing. N.J. v. Sonnabend.

Two middle school students sued their Wisconsin school districts after they were barred from wearing t-shirts with messages in support of the right to bear arms. One t-shirt displayed a Smith &  Wesson logo with an image of a revolver. The other t-shirt displayed the logo of the Wisconsin Carry, Inc., a gun rights group, and an image of a handgun. The students sued their respective school administrators in separate lawsuits alleging violations of their free speech rights under the First Amendment. The cases were consolidated and the district court ruled in favor of the school administrators2, finding the administrators' actions to be viewpoint neutral and reasonable. The students appealed to the Seventh Circuit. 

The Court of Appeals first determined that one of the students' case was "moot" because the student had graduated from middle school and was now in high school. 

With respect to the other student's challenge, the Court first determined that the student's actions implicated the student's free speech rights since the t-shirt conveyed an expression of political speech (a favorable opinion of firearms and support for the right to bear them). However, the Court acknowledged that a school can justify restrictions on speech activities if the school can show that the speech "would materially and substantially disrupt the work and discipline of the school" or invade the rights of others. That standard was established in a previous U.S. Supreme Court case called Tinker v. Des Moines Independent Comm. Sch. Dist, involving a First Amendment challenge to school policies that prohibited students from wearing black armbands to express opposition to the Vietnam War. Because the district court did not apply the Tinker standard in this case, the Court of Appeals sent the case back to the district court to conduct that analysis. 

Friday, June 17, 2022

Court Finds FOIA Challenge Moot But Remands Back to Trial Court to Analyze Whether Initial Denial Was in Bad Faith

In 2018, an inmate filed two FOIA requests with the Illinois Department of Corrections (DOC) seeking personal information about other inmates and certain inmate master record files. The DOC denied both requests on the basis that the records were specifically prohibited from disclosure by state laws. The inmate filed a pro se lawsuit against DOC seeking civil penalties, attorney fees, and costs alleging that DOC improperly denied the inmate’s requests. While the inmate’s complaint was pending, the DOC provided him with records responsive to the initial FOIA requests. The trial court ruled in favor of the DOC in the lawsuit, and the inmate appealed, alleging that (1) the DOC’s mid-litigation disclosure of responsive records did not render his lawsuit "moot" and (2) the court should have granted him costs and civil penalties.

In Staake v. Illinois Department of Corrections, the Fourth District Court of Appeals upheld the trial court’s ruling in favor of DOC due to the case being moot, finding that because the DOC provided the inmate with the requested records, there was no controversy any longer. 

However, on the issue of civil penalties, the Appellate Court reversed and remanded the case back to the trial court to determine whether the DOC denied the inmate’s requests willfully, intentionally or otherwise in bad faith. 

In remanding the case back, the Appellate Court noted that the DOC failed to provide a detailed factual basis, or any explanation at all, for why the DOC failed to redact certain exempt information from the responsive records pursuant to exemption 7(1)(a), and thereafter provide the inmate with redacted records, as required by FOIA sections 7(1) and 9(b). In addition, the Appellate Court noted that while the DOC’s re-assessment of its original interpretation of FOIA exemptions used to deny the FOIA requests, by itself, was not enough to demonstrate bad faith under FOIA, the fact that the DOC only did so after the inmate filed the lawsuit warranted further consideration by the trial court. 

Post Authored by Eugene Bolotnikov,  Ancel Glink