Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter


Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Monday, July 30, 2018

Court Finds Requests for Electronic Records Are Not Unduly Burdensome

Those of you who regularly read the blog or attend our FOIA speeches are likely familiar with the case of Hites v. Waubonsee Community College. We previously reported on the appellate court’s 2016 decision in that case, in which it found that individual data points within an electronic database are public records subject to FOIA. The appellate court also remanded the case to the trial court to address the College's argument that complying with the following 7 FOIA requests qualified as "unduly burdensome": 

1) the zip codes of people taking the National Safety Council’s Defensive Driving Course in 2011, 
2) the zip codes of people taking GED classes in fall of 2011 at the Aurora campus, 
3) the zip codes of all people taking ESL classes in the fall of 2011 at the Aurora campus, 
4) the raw input for the ”city” field on the student registration forms for all students in the fall 2011 at the Aurora campus, 
5) the raw input for the “county code” field on the student registration forms for all students in the fall of 2011 at the Aurora campus, 
6) the raw input for the “US citizen” field on the student registration forms for all students in the fall of 2011 at the Aurora campus, and 
7) the raw input for the “Are you in the United States on a visa-nonresident Alien” field on the student registration forms for all students in the fall of 2011 at the Aurora campus.

Trial Court Ruling

Back at the trial court level, the College argued that compliance with these remaining 7 requests would be unduly burdensome because the College's database system is complex and the data did not reside in any single database or report. and because of the amount of staff time required to respond to all of these requests.

In considering the "unduly burdensome" argument, the court looked at the following three elements:

1) compliance with the request as stated must be unduly burdensome,
2) there is no way to narrow the request, and
3) the burden on the public body outweighs the public interest in the requested information. 

The trial court found that the 7 requests were unduly burdensome as testimony showed that a response to all requests would like take over 20 personnel days, which would impede College staff’s ability to perform their other duties.  Further, the trial court found that some of the requests would require searching databases that were not in the control of the College.  The trial court also found that the burden on the College outweighed the public interest because the requester only sought the demographic information to speculate about what businesses the students might frequent.

Appellate Court Ruling

Hites (the requester) appealed the case, and the appellate court reversed and remanded the case to the trial court, finding that the record did not support the trial court's ruling in favor of the College that response to the FOIA request would be an undue burden. Hites v. Waubonsee Community College, 2018 ILApp 2d 170617, July 20, 2018.

With regard to the first element - that compliance would be unduly burdensome - the appellate court found that the College’s alleged burden was improperly padded with time that staff would spend on other activities.  The appellate court determined that the record did not show that It would take weeks or even months to respond to the requests.   Further, the appellate court found that the record did not show that outside databases would need to be searched to obtain the requested information.  Rather, the information could all be retrieved from two databases which were under the control of the College. 

 As for the second element - that there is no way to narrow the request - the appellate court looked to Section 3(g) of FOIA, which requires that the public body extend the requester an opportunity to narrow the request.  The court found that the trial court erred as it did not make a necessary finding as to whether the 7 requests could be narrowed. 

For the third element - whether the public interest in the records outweighs the burden on the public body - the appellate court noted that while the trial court only identified one public interest - to learn student demographics in order to speculate about business, other public interests were contained in the record.  The appellate court noted that the requester sought the data to determine whether the College was fulfilling promises regarding the construction of a new campus, whether it was working in the City’s best interest, whether certain agreements between the College and the City needed to be revisited, and whether students were being sent to campuses outside Aurora.  The appellate court found all of these reasons to be legitimate public interests, which do outweigh the burden on the public body.  

This case is significant as it shows the high burden that must be met for a public body to claim records are unduly burdensome.

Post Authored by Erin Pell, Ancel Glink

Friday, July 27, 2018

Cook County Proposes 2 Referenda Questions Regarding Minimum Wage and Sick Leave

In 2016, the Cook County Board of Commissioners passed two ordinances regarding minimum wage and sick leave. Both ordinances took effect last summer, with the minimum wage increase being phased in over the next few years. Many Cook County municipalities (over 100) have chosen to "opt out" of the two ordinances by passing their own ordinances to that effect. 

This week, the Cook County Board of Commissioners took action to place two advisory referenda on these two topics on the November ballot directed at municipal voters. Although the referenda are advisory only, Cook County municipalities should be aware of these ballot questions as there may be questions from municipal officials and citizens as to what effect these questions might have if they are approved. In short, advisory referenda have no legal, binding effect.  

The ballot questions read as follows: 

(1) “Shall the minimum wage in your municipality match the $13 per hour Cook County minimum wage law for adults over the age of 18 by July 1, 2020, and be indexed to the consumer price index after that?”
 [ ] Yes
 [ ] No
(2) “Shall your municipality match the Cook County earned sick time law which allows for workers to earn up to 40 hours (5 days) of sick time a year to take care of their own health or a family member’s health?”
[ ] Yes
[ ] No

Wednesday, July 25, 2018

Court Dismisses Zoning Challenge as Moot

A property owner filed a lawsuit against a municipality challenging a city's amendment to its zoning ordinance to require a special use for residential uses on property zoned in the light commercial zoning district. The court dismissed the lawsuit because the owner failed to exhaust his administrative remedies by not applying for a special use permit. The owner then filed an application for a special use permit, but the city rejected it because it was defective. In 2017, the city rezoned his property, which rezoning contained the same residential zoning restrictions as the previous zoning code amendment.  

Subsequently, the owner filed a second lawsuit against the city claiming that the zoning amendment passed by the city in 2013 was invalid because he did not receive individual notice of the meeting of the city council where the 2013 amendment was adopted. The trial court dismissed the case, and the appellate court affirmed, both finding the owner's case moot because even if the 2013 amendment were held invalid, the 2017 rezoning decision would remain in effect with the same residential restrictions being challenged by the property owner.

Although the substance of the case is mostly procedural in nature, the appellate court's statements on the effect of a city's zoning approvals is interesting. The owner argues that he has a right to develop his property consistent with the zoning that existed when he bought the property. The court rejected that argument, finding that an owner has "no constitutionally protected interest" in the continuation of zoning. The other important issue is that the court acknowledges that the property owner should not be able to challenge a special use permit requirement without having gone through the special use permit process.

Post Authored by Julie Tappendorf

Monday, July 23, 2018

PAC Orders Release of Documents in Binding Opinion

The PAC recently issued its eighth binding opinion of 2018.  In PAC Opinion 18-008, the PAC found that the Cook County Health and Hospitals System (“CCHHS”) improperly denied a request for records as unduly burdensome, and further finding that the financial terms requested were not exempt under 7(1)(g). 

The requester had submitted a FOIA request to CCHHS requesting an Agreement showing certain payments and the per member per month capitation rate ("rates”).  CCHHS denied the request as an unduly burdensome repeated request, stating that the requester previously asked for the same document in 2015, at which time CCHHS provided the document to her with redactions. The requester had previously filed  a request for review with the PAC in 2015, contesting the redacting of the rates.  At that time, the PAC determined that CCHHS had improperly redacted the rates under 7(1)(g) of FOIA and found that CCHHS must disclose the rates to the requester.  CCHHS did not provide the requester with those rates after the PAC’s decision. 

The requester again sought review with the PAC regarding CCHHS’s denial of her 2018 request.  Upon review, the PAC found that CCHHS improperly denied the request as unduly burdensome under Section 3(g) of FOIA.  The PAC found that CCHHS could only deny the 2018 request as unduly burdensome if it had properly denied the rates in response to the 2015 request.  Since CCHHS did not comply with the PAC’s direction to release the rates in 2015, the PAC found that it had not property denied the first request.  The PAC noted that a request is only considered an unduly burdensome repeated request if the public body previously provided the records or previously properly denied the prior request for the same records.

The PAC also reviewed whether the 7(1)(g) exemption would be applicable.  Section 7(1)(g) of FOIA exempts “trade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure of the trade secrets or commercial or financial information would cause competitive hard to the person or business, and only insofar as the claim directly applies to the records requested.”  CCHHS argued that the rates are exempt under 7(1)(g) as the rates are not an obligation or expenditure of public funds, and disclosure would cause financial and competitive harm in future negotiations.  The PAC determined that CCHHS improperly redacted the rates under 7(1)(g), finding that the rates directly relate to the use of public funds.  The PAC found that CCHHS failed to demonstrate that disclosure of the rates would cause competitive harm.   The PAC clarified: “Unlike an instance in which a public body obtains financial information from a business in a regulatory or investigatory capacity, the redacted PMPM capitation rate determines the extent of CCHHS’s expenditure of public funds.” The PAC ordered CCHHS to provide the requester with a copy of the agreement showing the rates. 

This opinion confirms that in order to deny a "repeated" request, a public body must have either previously provided the document in full, or provided a proper denial.  Further, the PAC again made it clear that 7(1)(g) will only be applied where competitive harm is actually shown, and the use of public funds is public information.

Post Authored by Erin Pell, Ancel Glink

Friday, July 20, 2018

Quorum Forum Podcast - What to Do When Your Gov Gets Sued

A new special meeting episode of our Quorum Forum podcast has been released!

What to Do When Your Gov Gets Sued

People sue the government all the time, but (hopefully) your local government doesn’t receive a lawsuit every day. Ancel Glink litigator Aaron Bitterman joins us for a special meeting to discuss some of the first things your local government should do when a lawsuit comes in the door. 

You can listen on Quorum Forum's website here.

Do you have questions for public comment, or ideas to include on the agenda for our next meeting? Email us at podcast@ancelglink.com!

Wednesday, July 18, 2018

City in Violation of FOIA for Redacting PINs

In its 9th binding opinion for 2018, the PAC found a public body in violation of FOIA for redacting the Parcel Identification Numbers (PINs) from records released in response to the FOIA request. PAC Op. 18-009.

A FOIA request was filed with a Chicago agency requesting records relating to variances granted under the City's shared housing ordinance. The request specifically asked that the records include the PINs for each parcel. The City responded to the FOIA by providing the requested records, but redacted the PINs, citing the "private information" exception under 7(1)(b) of FOIA. 

The requester appealed to the PAC, and the PAC ruled against the public body, rejecting its argument that the PINs for individual parcels are "unique identifiers" under 7(1)(b) of FOIA. The PAC noted that the phrase "unique identifier" is intended to apply to information about people (such as a social security number), and not information about property. The PAC also noted that PINs are publicly available information.  The PAC also rejected the City's argument that release of the PINs would constitute an unwarranted invasion of personal privacy under 7(1)(c) of FOIA. The PAC determined that the interest in release of information about homes that are used as vacation rentals in Chicago outweighed any interest in the property owners in keeping that information private.

Post authored by Julie Tappendorf

Monday, July 16, 2018

Zoning Lawsuit Bill Signed By Governor

We previously reported on HB 4711, which had passed both houses last month. That bill proposed to amend the municipal, county, and township zoning statutes to make it clear that the Adjoining Landowner Act does not provide a cause of action to individuals to sue the government to challenge zoning decisions unless the government is the owner of the property subject of the zoning challenge. You can read our previous post here

We wanted to update you to report that the Governor has signed this legislation into law as PA 100-595. The relevant language that was added to the municipal zoning statute is as follows:
Except in relation to municipality-owned property, this Section does not authorize any suit against a municipality or its officials for any act relating to the administration, enforcement, or implementation of this Division or any ordinance, resolution, or other regulation adopted pursuant to this Division.
There are a number of cases that had already held that the Adjoining Landowner Act does not provide a cause of action against the government (except as property owner), and this new law confirms that.

The legislation is effective June 29, 2018.

Post Authored by Julie Tappendorf

Friday, July 13, 2018

Upcoming Webcast: Zoning Hearings

Webcast— Rules of the Game: A Framework for Fair & Effective Zoning Hearings

Don't miss this upcoming webcast hosted by the Planning and Law Division of the American Planning Association titled Rules of the Game: A Framework for Fair & Effective Zoning Hearings on Thursday, July 26, 2018 from 1:00 to 2:30 p.m. EDT.  Register here

This webinar will cover the legal requirements for public hearings, including constitutional due process considerations, and provide tips on how to more effectively manage these hearings.  Speakers include Ancel Glink attorneys David Silverman and Kurt Asprooth.

Details are as follows:

July 26, 2018

1:00 – 2:30 PM Eastern (noon - 1:30 PM Central)

CM | 1.50 | Law
CLE 1.50 through Illinois State Bar

Wednesday, July 11, 2018

Assessor Ordered to Release Assessment Records to Tribune

The Tribune filed a FOIA request with the Cook County Assessor's Office asking for records relating to the valuation of residential, commercial, and industrial property in Cook County for purposes of taxation. Specifically, the Tribune asked the assessor to produce the spreadsheets used in the assessment of commercial and industrial properties and also that it produce residential property valuation reports. The assessor’s office denied the FOIA request, citing the exemption under 7(1)(f) of FOIA. The assessor's office argued that the records were subject to the "deliberative process" exemption under FOIA. 

The trial court ruled in favor of the Tribune, finding that the requested documents “do not in any way reveal the subjective personal position or opinion of any individual in the [Assessor’s Office]” such that the preliminary records exemption would apply. The trial court further found that none of the documents revealed “any debate” or “deliberation,” but instead found that the documents “contain factual information and the results of the [Assessor’s Office’s] valuation which are not covered under the deliberative privilege.”

The assessor appealed, and the appellate court affirmed its ruling in Tribune v. Cook County Assessor's Office, 2018 IL App (1st) 170455. The appellate court went through the analysis of the "deliberative process" exemption. First, the court determined that the records were final, and not preliminary. Next, the court held that the records are not ones in which opinions are expressed or policies are actions are formulated - instead, the court found that the requested records were factual in nature, and consist of the results of the assessment process. The court stated the standard for applying the "deliberative process" exception as follows:
In order to qualify for the deliberative process exemption, a document must be both predecisional in the sense that it is actually antecedent to the adoption of an agency policy, and deliberative in the sense that it is actually related to the process by which policies are formulated....The policy reason for the deliberative process exemption is to encourage candid debates within agencies. The government is entitled to withhold documents that reflect the agency’s give-and-take leading up to its final decisions.
The court further stated that "[p]urely factual material must be disclosed under FOIA once a final decision has been made, unless the factual material is inextricably intertwined with the predecisional and deliberative discussions." Because the court found that the information requested by the Tribune is critical for the public to understand how they are being taxed, the court ordered the assessor to release the requested records to the Tribune. The court also upheld the trial court's award of the Tribune's attorneys' fees.

Tuesday, July 10, 2018

Public Body Violates FOIA in Not Responding to FOIA Requests

In its 6th binding opinion of 2018, the PAC found a public body in violation for failing to respond to a FOIA request. PAC Op. 18-006. The requester had filed three FOIA requests for various records including minutes and the recording of a personnel committee meeting, copies of the personnel handbook and policies for fire department personnel, and minutes of the monthly fire department meetings. According to the requester, the village failed to respond to any of these requests, and he filed a request for review with the PAC. The PAC found the public body in violation for failing to respond to the FOIA requests and for not cooperating with the PAC in the request for review process.

Monday, July 9, 2018

New Quorum Forum Podcast Released - Defending Police Actions

Ancel Glink released its fifth episode of its Quorum Forum podcast last week. In Episode 5, Ancel Glink litigation attorneys Tom DiCianni and Christy Michaelson discuss the challenges local governments face when defending allegations of police misconduct. Christy provides updates on police legislation, and Tom analyzes how technology and media attention affect the defense of high-profile police cases.

You can listen to Episode 5 (and all other episodes) here.

Monday, July 2, 2018

Public Body Violates FOIA In Denying "Repeated Request" For Same Records

It's been more than 3 months since the Illinois Attorney General PAC office issued a binding opinion, but the wait is over. In PAC Op. 18-007, the PAC found a public body in violation of FOIA for improperly denying a second FOIA request for the same records that had been requested in a previous FOIA request.

A requester filed a FOIA request with the Illinois Department of Corrections asking for records concerning the Illinois Impact Incarceration Program. IDOC provided some records, and provided a link to other records available on IDOC's website. Three months later, the requester filed a complaint with the PAC office. The PAC notified the requester that the complaint was too late (it wasn't filed within 60 days after the denial) but suggested to the requester that she file a second FOIA request, thus triggering a new 60 day appeal period.

Based on the PAC's advice, the requester filed a second request with IDOC asking for the same records. IDOC responded that section 3(g) does not require a public body to respond to repeated requests from the same person for the same records, and that it had conducted a search for the requested records and had provided the records it found through its search.

The PAC examined the language of 3(g) which allows a public body to deny subsequent requests for the same records submitted by the same person. The PAC determined that because IDOC did not provide sufficient support that it performed a thorough search and provided all relevant records in response to the first request, it could not deny the second request filed by the same person for the same records. 

It is unclear from reading this opinion how or in what manner IDOC failed to comply with FOIA. IDOC responded to the first request for records by either providing the responsive records or referring the requester to the website link where records could be found. When the second request was filed by the same person for the same records, IDOC denied it under 3(g) on the basis that IDOC had already responded to the same request and provided records previously. It appears that the PAC expects IDOC (and presumably all public bodies) to "prove a negative" - i.e., somehow establish to the PAC's satisfaction that the public body absolutely, positively, and without any doubt, has no other records responsive to the request beyond those that had been previously provided. I don't know how a public body can meet that standard, or why IDOC's initial response and provision of records to the requester wasn't enough. As for the PAC's advice to keep filing requests for the same information,  causing public bodies to repeatedly respond to requests for the same records? That's what section 3(g) was intended to avoid.

Post Authored by Julie Tappendorf