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Monday, December 5, 2011

PAC Binding Opinions of 2011 in Review - FOIA

UPDATED 4/9/2012:  Under state law, the Public Access Counselor of the Office of the Illinois Attorney General, is authorized to issue binding opinions in response to requests for review submitted by members of the public.  The PAC was granted this authority in 2010 when the General Assembly amended both the OMA and FOIA.  A request for review can be filed when a Freedom of Information Act request has been denied by a public body or when a public body has allegedly violated the Open Meetings Act.  According to a story published by the Chicago Tribune today, most of the complaints filed with the PAC involve FOIA requests rather than open meetings.  For example, last year, the PAC handled more than 5,200 new matters regarding public access, but only about 200 were for allegations of open meetings violations. 

According to the AG's website, the PAC has issued just 11 binding opinions in the two years since the PAC was created -- four in 2010 and seven in 2011 and all involving FOIA appeals.  I have summarized the 2011 opinions in this post and will provide a summary of the 2010 opinions in a future blog. 

Spoiler alert - the PAC ruled against the public body in each of the seven opinions from 2011 that are summarized below and, in all but two of the opinions, the requestor appealing the FOIA denial was a reporter.

PAC Opinion 11-001  (arrest records)
An individual filed a FOIA request seeking arrest records and gunshot residue test report. The request was denied based on the criminal history record exemption under Section 2.15 and because the public body did not possess the gunshot residue report.  On appeal, the PAC first determined that since the gunshot residue report was not in the public body 's possession, the denial was permissible. However, the PAC also determined that the arrest records were not exempt under FOIA and, therefore, the public body violated FOIA by improperly denying the records.

PAC Opinion 11-002 (police officer assignments)
A reporter filed a FOIA request seeking records containing the number of sworn officers assigned to each district. The public body denied the request under Section 7(1)(v), claiming that the information related to the mobilization and deployment of police personnel. The PAC determined that the records were not exempt because the public body failed to demonstrate how the number of officers assigned to a district could reasonably be expected to jeopardize the effectiveness of security measures or safety of the officers or public.  In short, the PAC found that the public body violated FOIA.

PAC Opinion 11-003 (unduly burdensome)
A reporter filed a FOIA request seeking various records relating to a university’s presidential search.  The university sought pre-authorizations to withhold certain information under Section 7(1)(c) as personal privacy information, which was partially denied by the PAC. The university then partially denied the FOIA request. A subsequent request was filed, seeking the documents previously denied and the university denied the subsequent request, asserting that providing the requested documents would be unduly burdensome and that the request was a “repeated request” from the same person for the same records. The PAC found that the university violated FOIA because the public body did not either (1) previously disclose the requested records or (2) property deny the previous request.

PAC Opinion 11-004 (settlement agreements)
A reporter filed a FOIA request seeking a copy of a settlement agreement between a public body and a former employee.  The public body denied the request under Section 7(1)(s) which permits a public body to withhold records relating to insurance or self-insurance claims and loss or risk management information because the settlement amount was paid by the public body’s insurance carrier.  The PAC determined that the settlement agreement was not exempt under FOIA because (1) FOIA was recently amended to expressly provide that settlement agreements are public records subject to release and (2) Section 7(1)(s) only protects proprietary information regarding policies, procedures, and practices of the self insurance or risk management pool or association, and not information relating to individual claims or losses, including the amount to settle a claim.  In short, the PAC found that the public body violated FOIA.

PAC Opinion 11-005 (workers compensation records)
A reporter filed a FOIA request seeking 50 individual reports containing “nerve conduction velocity” results conducted as part of workers compensation claims involving employees at a particular correctional center.  The requestor subsequently clarified his request to the public body that personal identifying information could be redacted.  The public body denied the request, claiming that the tests were risk management records protected by Section 7(1)(s).  Based on similar analysis as contained in PAC Opinion 11-004, the PAC found that the records were not "proprietary" insurance or risk management documents and that the public body violated FOIA.

PAC Opinion 11-006 (electronic records on private devices)
As I discussed in more detail in a separate blog post on November 17, 2011, the PAC issued a binding opinion regarding the denial of reporter's FOIA request for text messages, emails, and other electronic records on public officials’ personal cell phones and other devices.  The public body had argued that the records were not “public records” subject to release, but the PAC disagreed and determined that the public body violated FOIA. 

PAC Opinion 11-007 (copies)
An individual filed a FOIA request for electronic and paper copies of mining plans with the Department of Natural Resources.  The Department responded that the records were available on microfiche and invited the requester to schedule an appointment for inspection.  The requester filed a request for review with the PAC, arguing that the Department's response was a denial of his request for a printed copy of the reclamation plan.  The PAC agreed, finding that the Department violated FOIA by refusing to provide copies of the records. 

Post updated 4/9/2012 by Julie Tappendorf, Ancel Glink


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