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Monday, January 26, 2015

PAC Wades into Constitutional Issues Again in 2nd Binding Opinion of 2015

In its first two binding opinions for this year, the PAC found two public bodies in violation of FOIA. That is no surprise.  What is surprising, however, is the analysis contained in the second opinion. This opinion raises additional questions about the scope of the PAC's authority  - something we discussed previously in connection with last year's PAC opinion finding improper a public comment rule that required disclosure of an address to speak, in part based on First Amendment grounds.  In today's opinion, the PAC declared a home rule municipality's ordinance invalid as an improper exercise of the municipality's constitutional home rule powers.  PAC Op. 15-002.  

PAC Opinion 15-002 involved Rosemont's denial of a request for records pertaining to Garth Brooks' record-breaking concert at Allstate Arena.  Specifically, a reporter had requested records relating to the village's alleged "rebate" to Brooks for the concert.  The village responded but redacted the amount of the rebate, and the requester filed an appeal with the PAC.  The village supported its denial based on a variety of FOIA exemptions as well as a local ordinance that allowed the village to withhold documents if the village believed the release would put village-owned entertainment venues at a competitive disadvantage.

In the appeal to the PAC, the village argued that the local ordinance was authorized by its home rule powers. The PAC disagreed, and determined that the village was preempted from adopting an ordinance that  would avoid disclosing records to the public.  The PAC cited a couple of Illinois cases where the court found a home rule municipality's powers preempted by state statute - none of which involved FOIA.  In fact, the PAC acknowledged that there are no cases involving a preemption analysis and FOIA, making this issue one of first impression in Illinois.  The PAC then applied the standards established by Illinois courts on preemption to the FOIA statute and determined that home rule municipalities are preempted from regulating in the area of access to governmental information.

In addition to performing its constitutional preemption analysis, the PAC also rejected the village's argument that the records amounted to "trade secrets," the release of which would place the village at a competitive disadvantage to private businesses who were not required to disclose financial records. The PAC ordered the village to turn over the requested records.

There has been a trend lately for the PAC to weigh in on constitutional issues that would seem to be outside of its limited jurisdiction as set out in state statute.  I don't offer an opinion as to whether Rosemont's ordinance is within its home-rule powers, or whether FOIA preempts local regulation in the area of access to public records.  I do offer my opinion that the scope of home rule powers (a constitutional right) and the application of the preemption doctrine is an issue for the courts, not the Public Access Counselor, particularly in an area of first impression not yet addressed by any Illinois court (i.e., whether FOIA preempts local government regulation of access to governmental information).  

Some of you may be wondering what happened to 15-001 - don't worry, we'll report on that opinion later this week. 

Post Authored by Julie Tappendorf


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