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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


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