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Monday, January 8, 2018

PAC Binding Opinions of 2017

It's that time of year when we provide a summary of the binding opinions issued by the Public Access Counselor office of the Illinois Attorney General on FOIA and OMA complaints.  This year, the PAC issued 14 binding opinions, summarized below:

PAC Op. 17-001 (public body must provide detailed factual basis for exemption)
In PAC Op. 17-001, the PAC found the Illinois State Police in violation of FOIA for improperly denying a request for an ISP field report referenced in an accident report the requester had previously received. In the PAC's opinion, the mere existence of an open investigation is not enough to satisfy this exemption, and the ISP was required to explain, in some detail, why release would interfere with the open investigation.

PAC Op. 17-002 (public body must respond to FOIA)
In PAC Op. 2017-002, a reporter sought a copy of a police report of a police pursuit. The public body did not respond to the request, and the reporter filed a request for review. Not surprisingly, the PAC found the public body in violation of FOIA for not responding to the request or providing the requested record.  

PAC Op. 17-003 (city improperly redacted financial information)
In PAC Op. 17-003, the PAC found a public body in violation of FOIA for improperly redacting and withholding certain financial information from its response to a FOIA request because (1) It failed to provide a written explanation for any denial of a FOIA request, including a partial denial that results in redactions of public records; (2) it improperly redacted financial terms of the district's agreement with the private company was improper but the use of public funds is public information under the Illinois constitution; and (3) it withheld annual budgets where there is no exemption under FOIA that would require a public body's budget to be withheld.

PAC Op. 17-004: (closed session)
In PAC Op. 17-004, the PAC found a municipality in violation of the OMA for improperly discussing an intergovernmental agreement in closed session. The public body relied on the "pending or probable" litigation exception but the PAC rejected that and noted that the newspaper had reported that no lawsuit was pending and that the mayor had stated that that he did not expect a lawsuit to be filed.

PAC Op. 17-005 (statistical traffic count data not exempt)
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 the deliberative process exemption.

PAC Op. 17-006 (employee records not exempt)
In PAC Op. 17-006, a reporter requested records showing job titles, locations, and number of employees that the Department of Corrections considers "essential.” The Department denied the request. The PAC ruled against the DOC finding that it failed to provide a detailed factual basis for the exemption and failed to provide records to the PAC for confidential review under section 9.5(c) of FOIA. The PAC also rejected DOC’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.

PAC Op. 17-007 (public body must respond on behalf of airport authority)
In PAC Op. 17-007, the PAC found a City in violation of FOIA for not responding to FOIA requests to the City’s Airport Board. The PAC disagreed with the City’s contention that the Airport is a separate entity.  Although the Airport has its own board and adopts it own laws, the PAC found that the Airport was a City-owned property, and the Board was created by City ordinance. The Airport Board members are also appointed and may be removed by the City’s mayor and Airport funds are maintained in the City treasury.  Further, the PAC noted that the Airport Board submits reports to the City, and is listed as a City Board on the City’s website. 

PAC Op. 17-008 (Deputy Governor’s emails and daily schedule)
In PAC Op. 17-008, the PAC issued a ruling finding the Governor's office in violation of FOIA for not responding to a request for copies of the Deputy Governor's emails and daily schedule. 

PAC Op. 17-009 (public body must comply with FOIA)
In  PAC Op. 17-009,  the PAC issued an opinion finding a public body in violation of FOIA for its complete failure to respond to a FOIA request.  

PAC Op. 17-010 (employee names on certified payroll releasable)
In PAC Op. 17-010, the PAC found a municipality in violation of FOIA for redacting employee names from a certified payroll record provided in response to a FOIA request. The PAC acknowledged that section 2.10 of FOIA authorizes a public body to redact from certified payroll records the contractor employees' addresses, telephone numbers, and social security numbers, but noted that this statute does not allow redaction of the employees' names. 

PAC Op. 17-011 (9-1-1 tapes releasable)
In PAC Op. 17-011, the PAC found a public body in violation of FOIA for denying a request made by a reporter for a 9-1-1 tape involving the death of a child. 

PAC Op. 17-012 (audio tape recordings of open meetings are subject to release)
In PAC Op. 17-012, the PAC found a public body in violation of FOIA when it denied a request to release audio recordings of meetings of the public body. The PAC rejected the public body's argument that the audio recordings were preliminary because they are used in the preparation of the official minutes of the meeting. 

PAC Op. 17-013 (closed session not proper to discuss board member conduct)
In PAC Op. 17-013, the PAC determined that a Village Board could not go into closed session to discuss a Board member's alleged racists  comments made at a previous Board meeting because a Village Board does not have the power to remove one of its members from office, in the PAC's opinion.

PAC Op. 17-014 (purpose of FOIA request is not a basis for denial)
In PAC Op-014, the PAC found a county in violation of FOIA for denying a request for copies of FOIA requests. The county had denied the request because it believed the request to be improper. The PAC found that to be an improper basis for denial since there is no provision in FOIA authorizing withholding of records based on a belief about the underlying purpose of the request.

PAC Op. 17-015 (failure to respond to FOIA request)
The PAC found the Governor's office in violation of FOIA for failing to respond to a FOIA request for a log of all FOIA requests for a defined period of time. PAC Op. 015.


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