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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

Tuesday, December 6, 2022

Generic (Unidentifiable) Patient Admission Information Subject to FOIA

In 2018, the Chicago Sun-Times submitted a FOIA request to Cook County Health and Hospitals System (CCHHS) seeking the times/dates of admissions for gunshot wound patients seeking treatment at CCHHS, and the corresponding times/dates these admissions were reported to law enforcement. CCHHS denied the request alleging that the records were exempt pursuant to FOIA exemption 7(1)(a), because the Health Insurance Portability and Accountability Act (HIPAA) prohibits disclosing personal health information (PHI), as well as FOIA exemption 7(1)(b), which exempts private medical information. After the Sun-Times filed a lawsuit alleging that CCHHS denied the records in violation of FOIA, the trial court ruled in favor of CCHHS.

After the Sun-Times appealed, we posted on this blog about the First District Appellate Court’s reversal of the trial court and ruling in favor of the Sun-Times. In that post, we discussed how the Appellate Court held that CCHHS could disclose the years that gunshot patients were admitted and the years that law enforcement was notified about those admissions without violating HIPAA or a patient’s privacy rights, because this information could be “de-identified” to provide only the years while removing other PHI. Similarly, the Appellate Court determined that disclosing the year of a patient’s admission, by itself, does not constitute a private medical record prohibited from disclosure under FOIA section 7(1)(b), especially where the information “is entirely divorced from any personally identifying information.”

In Chicago Sun-Times v. Cook County Health and Hospital Systems, the Illinois Supreme Court affirmed the Appellate Court’s judgment. Specifically, the Court found that disclosing de-identified information regarding the year of admission and police notification is not specifically prohibited by HIPAA, so CCHHS improperly withheld the information pursuant to FOIA exemption 7(1)(a). The Supreme Court also rejected CCHHS’s argument that the entire medical record is exempt under FOIA exemption 7(1)(b), finding that the year element is not private medical information under FOIA, and that by removing uniquely identifying information from a patient’s healthcare history, the remaining non-exempt, de-identified portions of the responsive record is subject to disclosure.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, December 5, 2022

Quorum Forum Podcast Ep. 67 Just Released

Ancel Glink has just released a brand new Quorum Forum podcast episode: Quorum Forum 67: An Old Tradition for the New YearThe Quorum Forum podcast team loves a good tradition. To ring in the New Year, we will be reviewing case law and legislation that our local government listeners should be aware of as we head into 2023.

Happy Holidays from Ancel Glink's podcast team!

Wednesday, November 30, 2022

Court Rejects Sovereign Citizen Defense in Vehicle License Case

In Norman v. City of Chicago, an Illinois Appellate Court rejected a “sovereign citizen” defense brought by a vehicle owner in a City ordinance enforcement action. 

The owner of a vehicle was issued a $60 fine for violating the City of Chicago Code due to expired registration on his license plate. He filed an appeal with the City of Chicago Department of Administrative Hearings (DOAH) where he argued he did not have any contracts with the City of Chicago, was not engaged in “commerce” while traveling in his private automobile, and that he did not consent to be subject to any City of Chicago laws, so he was exempt from any tickets. The administrative law judge found that the plaintiff did not raise a permissible defense and was responsible for the fine. He appealed that decision to the circuit court, which affirmed the DOAH decision.

On appeal to the Appellate Court, Norman argued the Chicago Code applies to commercial “motor carriers," not personal use of a vehicle, and that he was not subject to Chicago’s “political boundaries.” The Appellate Court rejected these arguments, stating there was evidence of the violation and that he failed to raise any proper grounds for contesting the violation.  The Appellate Court pointed to the Chicago Code provision that “every vehicle when driven or moved upon a highway” shall be subject to registration.

The Court also rejected the plaintiff’s other defenses, noting they were clearly taken from the playbook of “sovereign citizens,” who, in the Court's opinion, clog the court system by arguing nonsensical legal theories that have no validity in American law. 

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Tuesday, November 29, 2022

Court Finds in Favor of Department of Corrections in FOIA Challenge

An inmate filed six FOIA requests with the Illinois Department of Corrections (Department) seeking Department records, policies, and copies of the Department’s prior denials of the inmate’s FOIA requests. The Department rejected some of the inmate’s FOIA requests for failing to identify responsive public records and withheld other requested records under various FOIA exemptions.

The inmate sought review of the Department’s denials with the Public Access Counselor of the Attorney General’s office (PAC). The PAC determined that no further inquiry was warranted and closed the file. The inmate then filed a lawsuit against the Department alleging it violated FOIA by improperly denying his requests and witholding responsive public records. The circuit court dismissed the inmate’s lawsuit finding his FOIA requests either failed to properly identify public records, or other portions were properly denied by the Department.

On appeal, the Appellate Court in Warren v. Dep’t of Corr. upheld the circuit court’s ruling in favor of the Department. 

First, the Appellate Court determined that the Department proved it did not possess records pertaining to surveillance footage protocols or temperature monitoring by submitting affidavits from the Department’s assistant legal counsel that such records did not exist. The Appellate Court emphasized that FOIA does not create an independent requirement for governmental bodies to maintain public records, and the nonexistence of requested records is an affirmative defense.

Second, the Appellate Court determined the Department’s denial of the inmate’s request for general information on the Department’s grievance policies and information about a prescription drug banned by the Department was permitted because the request failed to identify a specific public record. The Appellate Court also found that the Department properly withheld building inspection records and health, sanitation, and safety reports as these records were prepared for internal audit purposes and exempt from disclosure under FOIA (section 7(1)(m)). 

Finally, the Appellate Court upheld the Department’s denial of the inmate’s request for copies of his previous FOIA requests denied by the Department under FOIA’s "repeated request" exemption (section 3(g)). The Court held that that Department did not have to provide the inmate with copies of records already provided to him or previously denied as doing so would be unduly burdensome to the Department.

Post Authored by Tyler Smith & Julie Tappendorf, Ancel Glink

Monday, November 28, 2022

Court Will Not Issue Injunction as to Future Legislation

In 2016, voters approved the Safe Roads Amendment to the Illinois Constitution which restricts government expenditure of transportation-related fees and taxes to transportation-related purposes. After the amendment was passed, a group of contractors, builders, and unions sued Cook County claiming the County was violating the amendment by spending transportation-generated revenues on non-transportation expenditures. The County's defense was that it was exempt from the Amendment as a home-rule unit of government, which defense was rejected in a previous lawsuit that made its way to the Illinois Supreme Court earlier this year.

Just a few months after the Illinois Supreme Court issued its rulings, the plaintiffs went back to court asking for an injunction against the County's draft budget for FY 2023 because plaintiffs claimed that the draft budget indicated that the County intended to continue to use transportation-related revenues for non-transportation purposes. The circuit court held a hearing and ultimately denied the motion for a preliminary injunction finding that the plaintiffs claims were "speculative."

On appeal, the Illinois Appellate Court also ruled in favor of the County but on "ripeness" grounds. Illinois Road & Transportation Builders Association, et al. v. County of Cook. The Appellate Court noted that only enacted legislation can be found unconstitutional, not draft or future legislation that has not yet been enacted. The Court rejected the plaintiffs' request that the Court order the County to adopt an appropriations ordinance that complies with the constitutional amendment, as that would require the Court to render an advisory opinion on future legislation. The Court also noted that granting an injunction to order the County to do or not do something in its appropriations ordinance would "meddle into the legislature's exclusive domain of drafting and enacting laws" in violation of the separation-of-powers doctrine.

In sum, the Court held that the plaintiffs' motion for an injunction as to the County's future appropriations ordinance was premature because it was filed before any ordinance was adopted and should be denied as Courts will not weigh in on the constitutionality of legislation that has not yet been enacted.

Tuesday, November 22, 2022

Bill Would Add a Definition for "Prevail" for FOIA's Attorneys' Fee Provision

The General Assembly recently introduced HB 5820, which proposes to amend section 11(i) of the Freedom of Information Act (FOIA) to add a definition of the word “prevail” for purposes of awarding attorneys fees to a prevailing party who challenges a FOIA decision by a public body. If passed, a plaintiff would be deemed to have "prevailed" in a FOIA lawsuit if it either (1) obtains a court order requiring the public body to turn over the records to the plaintiff or (2) receives all requested records from the public body.  

Currently, FOIA section 11(i) does not define the word “prevail,” but merely provides that: 

If a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorney's fees and costs.

In a prior blog post, we discussed the current Illinois Appellate Court split as to when a plaintiff is considered to have “prevailed” in a FOIA lawsuit to trigger FOIA’s attorneys’ fee provision. The First, Fourth, and Fifth District Appellate Courts hold that a court order is not required to trigger FOIA’s attorneys' fee provision, meaning a plaintiff could "prevail" in their FOIA lawsuit even if the public body provides the records while litigation is pending. On the other hand, the Second District Appellate Court holds that a plaintiff is entitled to attorneys' fees only if there is a court order in the plaintiff's favor in the FOIA lawsuit. Under the Second District approach, even if requested records are provided to a plaintiff while the FOIA lawsuit is pending, a plaintiff will not have "prevailed" for purposes of FOIA's attorneys' fee provision.

If HB 5820 is enacted, a plaintiff would have “prevailed” for purposes of triggering FOIA’s attorneys’ fee provisions if the plaintiff either obtains a court order in plaintiff’s favor or receives all requested records from a public body. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, November 21, 2022

Overweight Vehicle Ordinance Cannot Be Enforced Through Administrative Hearings

We recently reported on a case addressing the authority of a home-rule municipality to hold administrative hearings in the case of overlapping state and municipal traffic laws. Another Illinois Appellate Court recently weighed in on a similar issue in Cammacho, Jr., et al. v. City of Joliet. There, the Appellate Court held that the City’s overweight vehicle ordinance had been improperly enforced through administrative hearing procedures. 

The City Code makes it unlawful to operate vehicles over a certain weight on any road within the City that is not designated for such vehicles. After receiving citations for violating the ordinance, several commercial truck drivers contested their tickets at administrative hearings held by the City, but each driver was found liable for violating the ordinance. The drivers then appealed their citations to the circuit court, arguing that the City had no authority to issue tickets or impose fines for this type of vehicle restriction through an administrative adjudication hearing process. The trial court disagreed and upheld the issuance of the tickets. 

On appeal, the Appellate Court ruled in favor of the drivers, holding that the City did not have the authority to hold administrative hearings to adjudicate the overweight vehicle tickets issued to the drivers, based on a provision of the Illinois Municipal Code: 

           Any municipality may provide by ordinance for a system of adjudication of municipal code violations . . . except for . . . (ii) any offense under the Illinois Vehicle Code or a similar offense that is a traffic regulation governing the movement of vehicles and except for any reportable offense under Section 6-204 of the Illinois Vehicle Code. 65 ILCS 5/1-2.1-2 (emphasis added)

The Appellate Court noted that the Illinois Vehicle Code prohibits the movement of overweight vehicles, and that the City Code constitutes a “traffic regulation governing the movement of vehicles.” Because the City Code regulates the movement of vehicles by regulating the weight limits on City streets and because the drivers were cited for a violation while their trucks were moving, rather than while parked or stopped, the City did not have the authority to enforce the tickets issued to the drivers through the City's administrative adjudication hearing process because of the above-referenced exception in the Illinois Municipal Code. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Friday, November 18, 2022

Court Dismisses Lawsuit Based on Refusal of Employees to Get Vaccinated

Recently, an Illinois Appellate Court affirmed the dismissal of a lawsuit brought under the Illinois Healthcare Right of Conscience Act (Act) and denied two employees any recovery for their termination based on their refusal to receive a COVID-19 vaccine. Krewionek & Bosowski v. McKnight.

In August 2021, two employees at a dental and out-patient surgical office were discharged after they refused to comply with their employer’s rule requiring employees to receive a COVID-19 vaccination. The former employees then sued their employer, claiming a violation of Section 5 of the Act, which provides that:

It shall be unlawful for any person, public or private institution, or public official to discriminate against any person in any manner . . . because of such person’s conscientious refusal to receive, obtain, accept, perform . . . or participate in any way in any particular form of health care services contrary to his or her conscience. 

In November 2021, while this lawsuit was pending, the Illinois General Assembly passed a law amending the Act to carve out an exception for health mandates related to COVID-19. The Act now provides that it is not a violation of the act for individuals, entities, or public officials to impose requirements “intended to prevent contraction or transmission of COVID-19 . . . .” The amendment was passed as a declaration of existing law, and included a provision that it would “apply to all actions commenced or pending on or after” its effective date. 

The appellate court affirmed the trial court's dismissal of the employees' lawsuit, rejecting the argument made by the former employees that they did not believe the COVID-19 vaccines could prevent contraction or transmission of the coronavirus. The court noted that because the language of the exception covers measures intended to prevent the spread of COVID-19, and the former employees failed to argue that the vaccine mandate was not imposed with the intention to protect patients from contracting the virus, the dismissal of their case was proper. The court cited a U.S. Supreme Court case and the CDC website for the contention that vaccines are an effective tool to prevent and control disease, recognizing that while

some individuals may disagree . . . [these sources] support that the vaccines are intended to prevent the contraction and transmission of COVID-19.

Because the former employees’ lawsuit was “pending on or after” the date the amendment was passed, the court determined it was properly dismissed.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Wednesday, November 16, 2022

Bill Proposes Solution for Library District Board Vacancies

The Illinois General Assembly has reconvened for the Fall 2022 Veto Session. While this session is traditionally an opportunity for legislators to check the veto power of the Governor, it also gives the General Assembly time to consider new bills.

One of the new bills introduced in the Illinois Senate is SB 4232, which would amend the Public Library District Act of 1991 (Act) to provide an extension for filling vacant trustee positions on boards of library districts across the State but only for vacancies that occurred prior to May 27, 2022 that have not yet been filled.

Under the current version of the Act, when an appointed library district board has a vacancy, the other trustees on the board have 90 days to fill the vacant position. If the board fails to do so, the responsibility is passed to the State Librarian, who has 60 days to appoint an individual to the board. If the State Librarian does not fill the vacancy in this time, the vacant position must be filled at the next regularly scheduled election.

SB 4232 would give the State Librarian a renewed period of 60 days to fill longtime vacancies (those declared prior to May 27, 2022) in library districts across the State, rather than the vacancies being placed on the ballot for election. While the bill has very limited applicability, it could have interesting consequences for affected library districts in the spring of 2023 elections. We will update our readers as the bill makes its way through the General Assembly.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Tuesday, November 15, 2022

Court Upholds Pension Board's Rescission of Benefits

An Illinois Appellate Court recently upheld a Pension Board's decision to deny pension benefits to a former police officer based on the officer's felony conviction in Pruente v. Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago.

According to the Appellate Court's opinion, a former Chicago police officer was convicted of perjury, obstruction of justice, and official misconduct for providing false testimony in a narcotics case. The officer's application for pension benefits was initially approved by the Pension Board; however, subsequently the Pension Board rescinded its approval after investigating the felony conviction. The former officer sued, arguing that the Board's rescission of his pension benefits was an "excessive fine" in violation of the Eighth Amendment to the U.S. Constitution and that the Pension Board violated the Open Meetings Act when it failed to notify him of its initial meeting at which it revoked its approval of his pension.

The Appellate Court ruled in favor of the City, rejecting both of his arguments. First, the Appellate Court held that the officer waived the excessive fine argument because he failed to raise it before the Pension Board. Second, the Court held that any potential Open Meetings Act violation was cured when the Pension Board ratified its decision at a subsequent Board meeting where the officer was in attendance and was represented by counsel who had an opportunity to object to the Board's actions. Finally, the Court rejected the officer's argument that the Board did not have "good cause" to reconsider and rescind its prior approval of his pension benefits.

Wednesday, November 9, 2022

A Group Can Be Considered One Person When Applying "Repeated Request" Provision of FOIA

An individual submitted a FOIA request to a road district seeking certain communications and documents. In response, the road district provided certain non-exempt responsive records. However, because some of the requested records had been previously provided to the requester and two other individuals in a prior FOIA request, the road district denied that portion of the FOIA request on the grounds that it was a "repeated request" from the same person for the same records that were otherwise unchanged or identical to the records previously provided by the road district.

The requestor then filed a request for review with the PAC Office of the Attorney General (PAC). The PAC issued a non-binding (advisory) letter in 2022 PAC 73336, finding that the road district had properly classified the FOIA request as an unduly burdensome repeated request from the same person pursuant to FOIA section 3(g). The PAC rejected the requester's argument that because some of the previous requests were filed by two other individuals the "repeated requests" provision did not apply, finding that the requester and the other two individuals were acting as a "group" since they shared FOIA requests, responses, and responsive records and collectively discussed who would submit which FOIA requests for particular records. The PAC noted that FOIA expressly defines a “person” to include individuals acting as a group. As a result, the PAC determined that the road district properly designated the requestor and two named individuals as one “person” and the road district did not have to provide records to the requester that had been previously provided to other members of the requestor’s group.

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

Tuesday, November 8, 2022

Court Upholds Ruling That School District Did Not Engage in “Reverse Discrimination”

Earlier this month, the Seventh Circuit Court of Appeals ruled in favor of a school district, finding that an athletic director could not maintain a “reverse” race discrimination claim against his employer (“School District”). Groves v. South Bend Community School Corporation

Groves had been a teacher in the School District for 16 years before transitioning to the role of athletic director in 2007. In 2017, Groves interviewed for a newly created position that encompassed the entire School District. After the application and interview process, Groves claims that he was passed up for the role in favor of his Black colleague and filed a civil rights lawsuit alleging he had been a victim of race discrimination and that the other candidate was only hired because he is Black.

Two years later, the School District again reconfigured its athletics program, eliminating the district-wide position and creating four hybrid Dean of Students/Dean of Athletics roles at each of the high schools within the District. Because of this structural change, Grove no longer had a job in the School District, and the same Black colleague he argued was underqualified in his original lawsuit was hired for one of the Dean positions. Groves added this claim to his discrimination lawsuit, again claiming that he was passed upon in favor of his colleague based on race.

The district court granted the School District's motion for summary judgment prior to trial, finding that Groves could not, as a matter of law, present a case that would result in reasonable jurors deciding that the School District had engaged in race discrimination. While Groves had claimed he was better qualified for the job than his colleague, the district court held that the evidence collected in the case did not support his claims.

Groves appealed to the Seventh Circuit Court of Appeals, but that Court upheld the district court's ruling in favor of the School District. The Court of Appeals determined that Grove had failed to overcome the School District’s legitimate justification for hiring the other candidate over him. The School District had presented sufficient evidence that the other candidate was better qualified, had performed better in interviews, and had a respectable reputation to rebuild the athletics program within the School District. Because Groves could not show that these justifications were false, and because he could not show that the School District had discriminated against him based on his race, the Court of Appeals upheld the district court's ruling in favor of the School District.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink