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Tuesday, June 13, 2017

PAC Addresses "Deliberative Process" and "Attorney-Client" Exemptions in 2 FOIA Opinions

Yesterday, the Public Access Counselor (PAC) of the Illinois Attorney General's office issued 2 binding opinions finding public bodies in violation of FOIA.

In PAC Op. 17-005, a requester filed a FOIA request seeking traffic counts from roadway monitoring operations at specific roads. The village denied the request, asserting that the traffic counts were "drafts" that had not been publicly released and were exempt under 7(1)(f). The PAC rejected the village's explanation for the denial, finding that "purely factual material" is not exempt under section 7(1)(f) of FOIA. In this case, the PAC determined that the statistical data requested by the requester did not reveal the village's reasoning or decision-making process, so it fell outside the "deliberative process exemption" even if the data was subject to later revision. 

In PAC Op. 17-006, a reporter asked for records showing job titles, locations, and number of employees that the Department of Corrections considers "essential," meaning they would be required to work in the event of interruption in state funding to the Department. The Department denied the request, first citing 7(1)(f) (deliberative process) and then later citing 7(1)(m) (attorney-client communication).  

First, the PAC noted that the Department failed to provide a detailed factual basis for the exemption, as required by section 9(a) of FOIA, and failed to provide records to the PAC for confidential review under section 9.5(c) of FOIA. 

Second, the PAC rejected the Department's use of the "attorney-client" exemption, and its argument that the determination of whether an employee is "essential" is a legal analysis that falls under the attorney-client privilege under section 7(1)(m) of FOIA. The PAC found that the Department failed to provide any support for its argument that these records constituted a communication between the Department and its attorney or that they were materials created in preparation for trial. 

The PAC also rejected the Department's reliance on the "deliberative process" exemption, finding that the Department failed to provide support for its argument that the records express opinions or formulate policies.

Post Authored by Julie Tappendorf


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