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Friday, August 9, 2013

Privacy and Deliberative Process Protect Records From FOIA

A reporter had requested numerous documents under FOIA relating to the resignation of three university coaches in relation to an alleged assault of a student and subsequent settlement payment. The university released some of the records, and redacted or withheld certain records based on a variety of exemptions, including the personal privacy exemption, deliberative process exemption, and the Family Educational Rights and Privacy Act.  The reporter filed suit, claiming that the university violated FOIA. The trial court reviewed the documents in camera, and concluded that most of the documents were properly withheld or redacted, but ordered certain records released.  Although the university released these records, the reporter appealed the remainder of the court's ruling to the appellate court.  For the most part, the appellate court agreed that most of the records were exempt from release, but did order the release of three additional records.  State Journal-Register v. University of Illinois Springfield, 2013 IL App (4th) 120881. 

What is interesting about this particular case is the detailed analysis the appellate court went through in applying each of the three claimed exemptions.  The court's analysis will be particularly helpful to public bodies in determining whether or not the personal privacy or deliberative process exemption applies to a particular record.
1.  Deliberative Process Exemption.
For example, with respect to the "deliberative process" (or draft documents exemption) under Section 7(1)(f), the court first acknowledged that the purpose of this exemption was "to protect the communication process and encourage frank and open discussion among agency employees before a final decision is made."  Otherwise, the court noted that employees and officials may "temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."  In determining whether this particular exemption applies, a public body must separate purely factual material from the deliberative, predecisional discussions.  That factual material must be disclosed once the final decision is made unless it is inextricably intertwined with the exempt discussions.  In applying this exemption to the requested materials, the court held that e-mail strings containing staff opinions and general communications of the incident or scheduling of meetings during the investigation were exempt as the administrators collected information to guide in reaching a decision as to whether misconduct occurred.  Witness statements, however, were not exempt under this exemption because the contained factual allegations (the court did find these statements exempt under the personal privacy exemption).  The final decision on the investigation was also not exempt. 
2.  Personal Privacy Exemption.
The court first stated that information contained within a personnel file is general exempt from disclosure for personal privacy reasons unless it bears on the public duties of public employees and officials.  Applying that exemption to the requested records, the court determined that records reflecting the coaches' compensation for accrued vacation and sick time, employee status, and other related documents were exempt under the privacy exemption, stating "[w]e fail to see how the coaches' election for the disbursement of accrued vacation, sick leave, and related documents have any bearing on their alleged misdeeds or public duties."  The court distinguished a 2008 decision (Stern v. Wheaton-Warrenville Community Unit S.D. 200) that required the release of a school superintendent's contract. 
With respect to the witness statements, as noted above, the court applied the balancing test, finding that although the public has an interest in the disclosure of these records, the witnesses' right to privacy outweighed that interest.  Since the newspaper had already written numerous stories about the incident informing the public about the incident, and because the details of the sexual misconduct in the statements were highly personal, the court determined that the records were protected.
As to the unredacted settlement agreement, the court determined that a copy of the settlement had already been released, redacted to protect the student's name. The court determined that the redaction was proper to protect the victim's identity.
3.  Educational Privacy Act.
The Educational Privacy Act, a federal law, prohibits the release of education records, or personally identifiable information contained in those records) of students without the written consent of the students' parents.  Education records are defined as records, files, documents, or other materials that contain information directly related to a student and that are maintained by the educational institution.
In applying this law to the requested records that did not fall under one of the above FOIA exemptions, the court determined that the law did not protect records referencing the final decision, the coaches' statements, or a student's complaint, so long as the complaint was redacted to remove the student's name. 
As a result of this very detailed and comprehensive analysis, the court determined that the university must release a redacted student complaint, correspondence relating to the final decision, and the coaches' statements. 


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