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Tuesday, October 8, 2013

Goverment Loses in Two New PAC Binding Opinions

The PAC recently issued two new binding opinions (#15 and #16 for 2013).  In PAC 13-015, the PAC found a public body in violation of the Freedom of Information Act and in PAC 13-016, the PAC found a public body in violation of the Open Meetings Act.
In PAC 13-015, the Illinois State Police had received a FOIA request from the Chicago Tribune for copies of monthly crime report statistics submitted by the Harvey Police Department for 2012 and 2013.  The ISP denied the request, claiming that the requested data was preliminary in nature because the local agencies that submit the data are permitted to review and verify the data prior to publication by the ISP.  The data had not yet been reviewed by or published by the ISP. 
The Tribune appealed the denial to the Public Access Counselor of the Attorney General's office.  The PAC reviewed the crime reporting forms submitted by Harvey, and determined that they were primarily statistical data, and not opinion documents.  The PAC relied on federal cases interpreting the federal FOIA "deliberative process" exception in rejecting the ISP's justification that the records were still in their draft form and had not yet been reviewed or published.  The PAC concluded that just because data may be subject to review and possible revision does not make that data preliminary or deliberative communications under the FOIA exception of 7(1)(f).  The ISP was ordered to provide copies of the reports to the Tribune.
In PAC 13-016, a school district had a board of education meeting where it also convened a closed session to conduct a dismissal hearing for a district employee.  Following the closed session, the board reconvened to open session and board members voted to recommend the dismissal of a district employee.  The employee was not named by the board in conducting its vote, and was reference as  "Employee A". 
A complaint was filed with the PAC claiming that the vote to dismiss the employee violated the Open Meetings Act because it did not name the employee.  The district responded to the complaint stating that it was protecting the reputation and privacy of the dismissed employee in not disclosing the employee's name in its vote.  In this binding opinion, the PAC ruled against the school district, finding that Section 2(c) of the OMA requires a "public recital of the nature of the matter being considered and other information that will inform the public of the business being conducted."  By taking "final action" without disclosing the name of the employee terminated by the school district board, the public was "deprived of any meaningful information concerning the practical effect of the Board's decision." The school district board was directed to take action to comply with the opinion, including reconsideration of the action in compliance with the OMA.


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