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Thursday, February 16, 2017

PAC Review, 2016 Edition, Part 1

The Public Access Counselor of the Attorney General's office has not published a binding opinion on FOIA and OMA complaints in 2017 yet. So, while we wait, let's look back at the 15 binding opinions that the PAC issued in 2016. We will summarize some of them today, and the remainder tomorrow. 

Anyone want to guess how many of these binding opinions were in favor of the public body? 

PAC Opinion 16-001 (response to FOIA request required)
In PAC Op.16-001, a reporter for the Chicago Sun-Times filed a FOIA request with the Chicago Police Department asking for "First Amendment-related worksheets" and emails and other communications relating to the Communist Party, Ferguson, the National Moment of Silence, and Black Lives Matter. Two weeks after he filed the request with the CPD, the reporter filed a complaint with the PAC claiming that the CPD failed to produce the records or respond to the request. Not surprisingly, the PAC found the CPD in violation of FOIA where the CPD did not produce the records or extend the time period for response within the 5 business days required for response under FOIA.

PAC Opinion 16-002 (post mortem photographs)
In PAC Op. 16-002, the PAC found the Illinois State Police in violation of FOIA when it denied a FOIA request filed by the decedent's estate for post-mortem photographs of a decedent  (including death-scene, autopsy, and other photographs) in the possession of the ISP. The ISP cited 7(1)(c) of FOIA in support of its denial of the request. That exemption protects from release certain personal information that, if released, would constitute a clearly unwarranted invasion of privacy. The PAC rejected the ISP's denial of the FOIA request, holding that an individual's personal privacy interests cease to exist upon death. The PAC directed the ISP to release the death-scene and autopsy photographs to the requester.

PAC Opinion 16-003 (response to FOIA request required)
In PAC Op. 16-003, a requester filed a FOIA request with a school district asking for various emails and text messages of certain district employees, as well as employment interview records. The district responded that it would be extending the time frame for an additional 5 days. However, when the requester had not received the records 4 weeks later, she filed an appeal with the PAC. The PAC found the district in violation for (1) not extending the time period for response properly; (2) improperly calculating the time for response with the extension; and (3) not providing the documents to the requester.
PAC Opinion 16-004 (timely response to FOIA request)
On April 5, 2016, a newspaper reporter filed a FOIA request with the Chicago Police Department for various information relating to the department's staffing levels, as well as copies of all personnel orders issued by the department. The CPD extended the time period for response and requested an additional time frame for response from the requester. On May 12, 2016, the reporter had not yet received the requested records and filed a request for review with the PAC office. In PAC Op. 16-004, the PAC found the CPD in violation of FOIA for failing to notify the requester of the extension within 5 business days, and for failing to provide the records to the requester, and directed the CPD to comply with FOIA and provide responsive records to the requester, subject to redactions.

PAC Opinion 16-005 (response to FOIA request required)
In PAC Op. 16-005, the Public Access Counselor found a public body in violation of FOIA for a complete failure to respond to a FOIA request. The request had asked for records pertaining to employee salaries, independent contractor compensation, attorneys' fees, elected officials compensation, and debt records. The Village did not respond to the request, nor did the Village extend the time for response. When the requester filed a complaint with the PAC office, the Village did not respond to that complaint either. Not surprisingly, the PAC found the Village in violation, and ordered the Village to provide the records. 

PAC Opinion 16-006 (emails on private devices)
In PAC Op. 16-006, the PAC found the Chicago Police Department in violation of FOIA when it failed to provide copies of emails sent/received by Chicago police officers on their private accounts that related to the Laquan McDonald shooting. The City had provided the requester with emails that were sent/received on the officers' official City email accounts or were found on the City server. The City did not provide any emails on the officers' personal email accounts on the basis that the emails were not public records because the City did not have any control over the officers' personal devices, and the emails were not used by, received by, in the possession of, or under the control of a public body. The PAC ruled against the City, finding that "communications pertaining to the transaction of public business that were sent or received on the CPD employees' personal e-mail accounts are 'public records' under the definition of that term in section 2(c) of FOIA." The PAC noted that any other interpretation would be "contrary to the General Assembly's intent of ensuring public access to full and complete information regarding the affairs of government."

PAC Op. 16-007: (closed session)
In PAC Op. 16-007, the PAC found a public body in violation of the OMA for discussing imminent litigation in closed session. Although the PAC ackowledged that the majority of the closed session related to the board's discussion of the possibility of a lawsuit to challenge a bond sale, nevertheless the PAC rejected the public body's argument that the potential for an injunction or other legal action justified the closed session. The PAC ordered the public body to release a copy of the verbatim recording.  

To be continued...

Post Authored by Julie Tappendorf


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