PAC Interprets Building Plan Exemption in FOIA

PAC Interprets Building Plan Exemption in FOIA

  Wednesday, February 28, 2018    Julie Tappendorf

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Section 7(1)(k) of FOIA exempts architects' plans, engineers' technical submissions, and other construction related technical documents for (1) private projects (i.e., not publicly funded) and (2) public projects "but only to the extent that disclosure would compromise security." 5 ILCS 140/7(1)(k). There are two different views on how to interpret this exemption: (1) does the quoted language apply only to plans for public projects or (2) does the quoted language apply to both private and public project plans. 

The PAC recently issued an advisory opinion providing clarification on this FOIA exemption. In 2013 PAC 26268, the PAC determined that a public body did not violate FOIA when it denied a request for building plans relating to a construction project on residential property of a neighbor to the requester. The requester had argued that the public body could not deny the request unless it demonstrated that disclosure would compromise security. The public body argued that the quoted language only applied to publicly financed projects.

The PAC disagreed with the requester and ruled in favor of the public body, finding that the "compromise security" language only applies to projects constructed with public funds. In this particular case, the plans being requested related to a privately funded construction project, so the public body did not have to demonstrate that release of the requested plans would compromise security. Instead, the PAC determined that the Village properly withheld the plans because "records pertaining to the construction of privately-funded building projects are exempt from disclosure under the plain language of section 7(1)(k) regardless of whether their disclosure would compromise security."

This opinion provides useful guidance to public bodies in applying this FOIA exemption.

Post Authored by Julie Tappendorf

Disclaimer: Ancel Glink represented the public body in responding to the PAC request for review.

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PAC Finds City in Violation for Not Responding to FOIA

PAC Finds City in Violation for Not Responding to FOIA

  Monday, February 26, 2018    Julie Tappendorf

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In its third binding opinion of 2018, the PAC found a municipality in violation of FOIA for failing to comply with, properly deny, or otherwise respond to a FOIA request. PAC Op. 18-003.

The requester submitted a FOIA request to the city asking for records pertaining to a city official's meeting schedule for a four month period in 2016. The city did not respond to the FOIA request, nor did the city respond to the PAC's "request for review." When the PAC reached out to the city clerk, she responded that the documents had already been provided to the requester. According to the PAC opinion, the city was unresponsive to follow up contacts from the PAC.

The PAC found the city in violation for not responding to the FOIA request. The PAC noted that even if the request were a duplicate one, and records had been previously provided, the city was still required to issue a written denial under FOIA. 

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Another Bill Restricting Government Travel Expenses

Another Bill Restricting Government Travel Expenses

  Friday, February 23, 2018    Julie Tappendorf

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HB 5633 was recently introduced to prohibit municipalities and counties from spending local funds derived from the Local Government Distributive Fund (LGDF) on travel, lodging, or dining. There are no limitations to this wholesale ban on these expenses, so this would seem to apply to any of these expenses, even expenses incurred in mandatory training or similar programs. This bill follows legislation we reported on a few weeks ago that prohibits local governments from reimbursing employees for conference expenses. 

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2 Bills Would Amend Criminal Records Provision of FOIA

2 Bills Would Amend Criminal Records Provision of FOIA

  Thursday, February 22, 2018    Julie Tappendorf

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Last week, two bills were introduced to amend the Freedom of Information Act (FOIA). Both bills would modify section 2.15 of FOIA, the section that deals with arrest reports and criminal history records.

SB 2944 would, if passed, amend FOIA to prohibit the release of a photograph taken in connection with an arrest report under section 2.15 of FOIA unless the individual has been formally charged by indictment, information, or complaint. 

HB 4932 would, if passed, also amend section 2.15 of FOIA to provide that any FOIA request for arrest reports or criminal history records must be submitted to the public body that created the public record. The bill would prohibit a public body from releasing a record that falls under this section if it did not create the record and requires the public body to refer the requester to the public body that did create the record.

Post Authored by Julie Tappendorf

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Write-In Candidate Loses Appeal

Write-In Candidate Loses Appeal

  Wednesday, February 21, 2018    Julie Tappendorf

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In Illinois, to run as a write-in candidate in a local election, the candidate must file a written declaration of intent with the proper election authority. A candidate for the office of commissioner of the Metropolitan Water Reclamation District (MWRD) filed his declaration of intent to be a write-in candidate with the Cook County Clerk. He did not file his declaration with the Chicago Board of Election Commissioners (Board), however. Because of that, he was notified by the Board that his name would not be printed on the ballot at the March election.

The candidate sued, claiming he complied with the requirements of Illinois statutes by filing his declaration with the County Clerk. Both the circuit court and the appellate court disagreed, and ruled against the candidate. The appellate court agreed with the Board that section 17-16.1 of the Election Code requires that write-in declarations of intent be filed with "the property election authority or authorities." (emphasis added). In this case, that means that the declaration had to be filed with both election authorities (Cook County which is the election authority for areas outside of Chicago and the Chicago Board of Election Commissioners which is the election authority for Chicago). Since the candidate only filed the declaration with one election authority and not both authorities, any write-in votes for the candidate will not be counted.

You can read the case here: Cook v. Orr

Post Authored by Julie Tappendorf

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Bill Proposes Local Government Email Act

Bill Proposes Local Government Email Act

  Tuesday, February 20, 2018    Julie Tappendorf

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Lost in the shuffle of numerous bills being introduced in both the Illinois House and Senate is a bill creating the "Local Government Email Act." This bill, if passed, would affect the communications of employees, officials, and officers of all units of local government and school districts in the state. We reported on similar legislation introduced last year here - that legislation did not pass.

The stated policy of HB 4375 is that all emails that are in connection with the transaction of public business sent or received by a unit of local government or school district or an employee, staff member, trustee, board member, elected official, or officer of a unit of local government or school district are public records regardless of the device used to send or receive the email.

Section 10(a) of the bill provides that if a local government or school district provides a government email address to any of its employees, officials, or officers it must provide a government email address to all government employees, officials, and officers.

Section 10(b) of the bill provides that if a government email address is provided to government employees, officials, or officers, then those individuals must use that government email for all government communications.

Section 10(c) of the bill provides that if a government official, officer, or employee has a government email address, and receives or sends a government communication on his or her private email, the individual must then forward the government communication to his or her government email account.

That same section also provides that if a government official, officer, or employee does not have a government email address, then he or she must provide a copy of all government communications sent/received on his or her personal  email account to the local government or school district. 

We will certainly keep track of this bill since it would affect all units of local government (interestingly, the bill does not apply to emails sent/received by state officials, officers, or employees).

Post Authored by Julie Tappendorf

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Water Bill Customer's Name Not Exempt Under FOIA

Water Bill Customer's Name Not Exempt Under FOIA

  Friday, February 16, 2018    Julie Tappendorf

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A requester submitted a FOIA request with a city asking for a copy of the water bill for a particular address. The city provided a copy of the bill, but redacted the customer's name, mailing address, and account number, citing 7(1)(b) of FOIA ("private information"). The requester filed a complaint with the Public Access Counselor (PAC) office of the Attorney General, who found the city in violation of FOIA in its second binding opinion of 2018.

In PAC Op. 18-002, the PAC rejected the city's argument that the water customer's name was exempt from release under the "private information" exemption (section 7(b) of FOIA), finding that the definition of "private information" in section 2(c-5) of FOIA did not expressly exempt a person's name from release. The PAC also cited section 2.5 of FOIA that states that records of a public body that relate to the receipt of public funds are deemed public records subject to release, and determined that a utility bill "clearly relates to the City's receipt of public funds." 

In sum, the PAC ordered the City to provide a copy of the requested water bill to the requester displaying the customer's name.

Post Authored by Julie Tappendorf

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Library District Annexation Bill Introduced

Library District Annexation Bill Introduced

  Thursday, February 15, 2018    Julie Tappendorf

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There has been quite a bit of new legislation introduced over the past few weeks, including a recent bill that would affect library districts in Illinois.

HB 4519 would amend the Public Library District Act to mandate that a referendum be held prior to annexing territory to a library district of any property that meets the following criteria: (1) the territory is within the boundaries of a municipality/school district that is within the district, (2) the territory is contiguous to the district, and (3) the territory is not served by a local public library. 

Currently, the law only requires a referendum to annex territory meeting this criteria if 10% of the voters in (a) the library district or (b) the property to be annexed file a petition for a referendum (what is known as a backdoor referendum). If this bill passes, however, the library board will be required to submit the question of annexation to referendum after it passes the annexation ordinance and only if a majority vote in favor of the referendum can the territory be annexed to the library district. 

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Bill Would Eliminate "Builder's Choice" on Form of Performance Security

Bill Would Eliminate "Builder's Choice" on Form of Performance Security

  Tuesday, February 13, 2018    Julie Tappendorf

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Under Illinois law, a municipality or ocunty can require a developer or builder to post security to guarantee the completion of public improvements related to a development. However, the law currently allows the developer or builder to choose the form of the security. Specifically, the law states that if a municipality or county requires performance security to be posted, the builder or developer has the option to file a letter of credit, surety bond, or letter of commitment in an amount equal to or greater than 110% of the amount of the bid on the particular improvements, and the municipality or county is obligated to accept it. 

HB 4531 would modify the statute to eliminate the language giving the developer or builder the choice on the form of security that it posts with the municipality or county. If passed, the law would allow a municipality or county to choose the form of security (except for cash bonds, which would be eliminated from the "menu" of forms of security under the statute). The bill would also eliminate the limitation on the amount of security that must be posted (currently, the statute allows the builder or developer to post security of its choosing in an amount of 110% of the improvements). Finally, the bill removes the home rule preemption language.

We'll monitor this legislation to see if it moves forward.

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New OMA and FOIA Bills Introduced

New OMA and FOIA Bills Introduced

  Monday, February 12, 2018    Julie Tappendorf

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There have been a couple of new bills introduced to amend the Open Meetings Act. The first (HB 4583) adds new obligations on public bodies in complying with the OMA. The second (HB 5433) would offer OMA and FOIA training alternatives to municipal officials. 

HB 4583 would amend the OMA to do the following:

1. Require that all special meetings be noticed in the same manner as regular meetings.
2. Eliminate the provision in the OMA that states that the failure of a public body to post notice and an agenda of a meeting on its website does not invalidate the meeting or any action taken at the meeting.
3. Require a public body with a website to post the meetings of all regular, special, and emergency meetings, including meetings of subsidiary bodies.
4. Authorize a court to declare null and void any final action taken at a meeting in violation of the law, whether the meeting is closed or open. (Currently, the OMA only authorizes a court to invalidate actions taken in closed session).
5. Mandates a court to award reasonable attorneys' fees to a prevailing party who brought a lawsuit to enforce the OMA. (Currently, the court has the authority, but not the obligation, to award attorneys' fees to prevailing parties).

HB 4533 would amend the OMA to authorize an alternative training program for elected or appointed officials. Currently, the only authorized OMA training for members of a public body is the electronic training program offered by the Public Access Counselor's office of the Illinois Attorney General. If passed, this bill would allow members of public bodies of a municipality to satisfy their OMA training obligation by attending a training conducted or sponsored by an organization that represents municipalities (i.e., the Illinois Municipal League). 

The bill also proposes to amend FOIA to authorize a similar alternative training program for FOIA officers.

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Alderman's Texts and Emails on Private Device Not Subject to FOIA According to Court

Alderman's Texts and Emails on Private Device Not Subject to FOIA According to Court

  Thursday, February 08, 2018    Julie Tappendorf

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The use of private cell phones by elected officials brings up a variety of legal issues, including whether the emails or text messages sent and received by the private device are subject to public release under the Freedom of Information Act. We have discussed this issue at length on the blog, including reporting about the Illinois appellate court's decision in Champaign v. Madigan where the court held that communications sent/received on city council members' private cell phones might be subject to FOIA under certain circumstances. You may remember that the Illinois Attorney General had taken a much broader position - that all communications sent/received by an elected official is subject to FOIA but the court limited that in its ruling in Champaign.

Recently, the Cook County Circuit Court dealt with this issue in a case called Ahmad v. City of Chicago. In that case, Ahmad had filed a FOIA with the City of Chicago for the release of texts and emails sent by or to a City Alderman relating to Ahmad or his property. The City denied the FOIA request, and Ahmad sued claiming that the communications were releasable because they related to City business. The City argued that because an Alderman is not a "public body," FOIA did not apply to the communications on the Alderman's private cell phone.

The circuit court agreed with the City, finding that the Alderman was not acting as a "public body" when he sent and received emails and texts to and from constituents relating to Ahmad and his property. The court noted that FOIA only applies to public bodies, not public officials. The court also acknowledged the holding in the Champaign case that there are three situations where communications sent to received by an elected official on his or her private device would be subject to FOIA - i.e., when those communications are (1) forwarded to a government account; (2) sent during a meeting of the public body; or (3) sent to a majority of the public body. Unless one of these three circumstances exists, these emails and texts were not subject to FOIA because the Alderman was not a "public body" subject to FOIA. The court rejected Ahmad's argument that Chicago Alderman are acting in a quasi-executive manner in zoning matters, finding that the ultimate authority in granting zoning approvals lies with the City Council and not just one Alderman. 

In sum, the court made it clear that the "public body" is the legislative body as a whole, and not an individual Alderman. Because an individual Aldermen is not a public body under FOIA, he or she is not subject to FOIA's disclosure requirements except in one of the three limited circumstances discussed in the Champaign case.

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Board Member Political Emails Not Covered by OMA

Board Member Political Emails Not Covered by OMA

  Tuesday, February 06, 2018    Julie Tappendorf

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A reader shared a recent advisory opinion issued by the Public Access Counselor of the Attorney General that addressed a claim that board members violated the OMA when they emailed each other about a referendum. The PAC ruled that the members of the board did not violate the OMA in 2017 PAC 49878.

A school district was contemplating issuance of working cash fund bonds in the amount of $20 million. In response, residents of the district filed a referendum petition to place the question of the issuance of the bonds on the spring 2018 ballot. Another group of residents filed an objection to the validity of the referendum petition. The PAC opinion notes that a couple of the school district board members had emailed each other about the referendum objection process, which led to the complaint filed with the PAC claiming the board members violated the OMA.

The school district argued that the board member emails did not violate the OMA because the board members were not "discussing public business" in those emails under section 2(a) of the OMA. The PAC agreed, finding that the emails between the board members were limited to the mechanics of filing the objections to the referendum petition and not business of the school district. Instead, the board members were acting as private citizens exercising their political rights, and not representatives of the school district board. Board members' private actions "are not automatically converted into the business of the Board solely because the actions could have an impact on the business of the public body." In short, the PAC found the emails to be more in the nature of "political discussions," which are not covered by the OMA. 

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Illinois' Gun Ban Within 1000 Feet of Public Parks Unconstitutional

Illinois' Gun Ban Within 1000 Feet of Public Parks Unconstitutional

  Monday, February 05, 2018    Julie Tappendorf

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On February 1st, the Illinois Supreme Court found an Illinois statute that bans persons from carrying or possessing firearms within 1,000 feet of a public park unconstitutional. People v. Chairez, 2018 IL 121417.

The Unlawful Use of Weapons Statute, 720 ILCS 5/24 et seq., prohibits people from carrying guns in certain public areas, including schools, public housing, public parks, courthouses. The law also prohibits guns on any public way within 1,000 feet of schools, public parks, courthouses, public transportation facility, or public housing. A violation is a class 3 felony.

Mr. Chairez pled guilty to possessing a firearm within 1,000 feet of a public park but later sought to vacate his conviction based on his claim that the statute was unconstitutional. The Illinois Supreme Court agreed, and struck down that portion of the statute that banned guns within 1,000 feet of a public park. The Court determined that the 1,000 ban was a severe burden on a person's Second Amendment right to carry a firearm, and that the state had failed to show how the 1000 foot ban actually reduces gun violence to children in public parks. The Court also noted the difficulty in a person determining the 1,000 foot area for purposes of compliance with the statute.

The Court did not address the 1,000 foot ban as it applies to the other statutory public areas (i.e., schools, courthouses, public housing), nor does the opinion affect the ban within public parks and the other statutory public areas.

Post Authored by Megan Mack and Julie Tappendorf, Ancel Glink

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