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Wednesday, August 28, 2019

Open Meetings Act "Personnel" Exemption Expanded

HB 2124 (proposing amendments to the Open Meetings Act) became effective last Friday. That legislation amends the OMA to allow a public body to go into closed session to discuss the hiring, firing, compensation, discipline, and complaints against specific individuals who serve as independent contractors in a park, recreational, or educational setting and specific volunteers under the "personnel" exemption under the OMA. 

Public bodies should remember that the PAC office of the Illinois Attorney General expects that public bodies using this exemption to go into closed session provide more detail in their motion that simply stating "personnel exemption." While the motion need not name the individual, it should provide a bit more detail, such as why the individual will be discussed (i.e., hiring, termination, etc). 

Tuesday, August 27, 2019

Appellate Court Addresses Prisoner FOIA Use

Last week, an Illinois appellate court upheld a circuit court's ruling that an inmate was not entitled to home addresses of other individuals under FOIA in an unpublished opinion.

In Serio v. Putnam Cnty. Sheriff’s Dept., Raymond Serio, an inmate of the Illinois Department of Corrections, sent two FOIA requests to the Putnam County Sheriff’s Department seeking specific information regarding individuals that had been booked into custody at the Putnam County jail. He asked for the name, age, full address, offense, date of arrest, and photos of each individual under Section 2.15(a) of FOIA. The Sheriff’s Department subsequently provided Serio the records he requested in part in response to both FOIA requests, but withheld the home addresses under Section 7(1)(b), which protects home addresses from release as "private information."

Serio sued, arguing that the Sheriff’s Department (1) willfully and intentionally failed to comply with his FOIA requests, (2) should be ordered to release the home addresses, and (3) should pay civil penalties and Serio’s costs of filing the lawsuit. The Sheriff’s Department reasserted its use of the "private information" exemption to bar disclosure of the addresses. The trial court ruled in favor of the Sheriff’s Department and denied Serio’s claim for relief. Serio appealed.

On appeal, Serio argued that the plain language of FOIA expressly provided for obtaining that information if it is included in arrest reports. This time, the Sheriff’s Department argued that Section 7(1)(e-10) of FOIA barred the disclosure. At the time of the trial court’s ruling, the exemption in Section 7(1)(e-10) had not yet been enacted.  This section exempts from FOIA the following:

  (e-10) Law enforcement records of other persons requested by a person committed to the Department of Corrections, Department of Human Services Division of Mental Health, or a county jail, including, but not limited to, arrest and booking records, mug shots, and crime scene photographs, except as these records may be relevant to the requester's current or potential case or claim.

The appellate court determined that the Sheriff’s Department’s use of this exemption was proper and that it could withhold the home addresses. The court reasoned that although Section 7(1)(e-10) became effective after the trial court ruling, it applied retroactively as the legislature did not expressly state otherwise, and because it was a procedural change to FOIA rather than a substantive change that would preclude Serio from exercising his rights under the statute. Finally, Serio failed to explain in both his complaint and FOIA requests how the information he requested was relevant to “his current or potential case or claim” as required by Section 7(1)(e-10).

Post Authored by Ashton Tunk & Julie Tappendorf

Monday, August 26, 2019

7th Circuit Upholds Construction Licensing Ordinance

Earlier this week, the Seventh Circuit Court of Appeals upheld an Indiana city's ordinance requiring a residential property owner who wants to make repairs to the residence either to obtain a license or to hire a licensed contractor. Regan v. City of Hammond.

Christopher Regan and the Northwest Indiana Creative Investors Association, Inc. were landlords who own and lease property in the City of Hammond. As property owners, they made periodic repairs and improvements to their properties. Before they could make improvements to their properties, however, they were required by city ordinance to either obtain a license or hire a Hammond-licensed general contractor. The code also makes an exception for persons making repairs or improvements to their own private, single-family residences in which they reside. Because the plaintiffs do not reside in their respective properties, they did not fall under this exception and were required to obtain a license or hire a licensed contractor.

In their lawsuit against the City of Hammond, the plaintiffs argued that the license requirements coupled with the exemption impermissibly burdened property owners who do not reside in the City, thus impeding "interstate commerce." They also argued that all owners of residential property in Hammond are participants and competitors in the national housing market, and that giving an occupant homeowner an exemption from the license requirement would discriminate against the non-occupant homeowner and landowners who are not domiciled in Hammond.

The Seventh Circuit rejected the plaintiffs' arguments, finding that the ordinance does not discriminate based on the where a homeowner lives. In its reasoning, the court explained that commerce clause analyses fall into three categories: laws that expressly discriminate against interstate commerce; laws that, although neutral on their face, bear more heavily on interstate than local commerce; and laws that may have a mild effect on interstate commerce but in practice do not give local firms any competitive advantage over firms located elsewhere. Because the ordinance draws no distinction between landlords that reside in Hammond and those who do not, the court concluded that the ordinance does not impose a disparate burden on non-Hammond landlords.

The court reasoned that the distinction rested on occupancy, which was a rational distinction considering occupants of residential property are more closely affected by property defects and repairs than that of the removed landlord. Furthermore, the court concluded that Hammond has an interest in the safety and habitability of the homes in which its residents reside, and the ordinance is a permissible exercise of its authority to promote that interest.

Although this case dealt with an Indiana municipality, the holding that this type of ordinance does not offend the commerce clause of the U.S. Constitution would also appear to apply to Illinois municipalities as well.

Post Authored by Rain Montero & Julie Tappendorf

Thursday, August 22, 2019

New FOIA Amendments Just Signed by Governor

Earlier this week, the Governor signed into law two bills to amend the Freedom of Information Act.

First, Public Act 101-0433 (SB1699) amends Section 2.15(e) of FOIA to redefine where law enforcement agencies may not publish booking photographs (i.e. mugshots). Before the amendment, an agency was not allowed to share on its “social media website”. With this amendment, the definition was changed to “social networking website” as it is defined in Section 10 of the Right to Privacy in the Workplace Act. Section 10 of the RPWA defines social networking site as:
an Internet-based service that allows individuals to: (i) construct a public or semi-public profile within a bounded system, created by the service; (ii) create a list of other users with whom they share a connection within the system; and (iii) view and navigate their list of connections and those made by others within the system. 
This definition excludes e-mail. This Act became effective yesterday.

Second, Public Act 101-0434 (SB1712) amends Section 7 of FOIA to add Exemption 7(1)(kk) which exempts from disclosure: 
The public body's credit card numbers, debit card numbers, bank account numbers, Federal Employer Identification Number, security code numbers, passwords, and similar account information, the disclosure of which could result in identity theft or impression or defrauding of a governmental entity or a person. 
This law becomes effective January 1, 2020.

Post Authored by Ashton Tunk & Julie Tappendorf, Ancel Glink

Tuesday, August 20, 2019

7th Circuit Addresses Privacy Exemption Under Federal FOIA

This week, the 7th Circuit delivered a victory for the federal government in Higgs v. United States Park Police, a case that involved balancing privacy interests against public disclosure under the federal FOIA statute.

Higgs was convicted and sentenced to death for participating in kidnapping and murdering three women with his two friends in 1996 in a federal park located in Maryland. Higgs, while on death row, insisted for several years that the federal government failed to turn over exculpatory evidence as required by law. In 2012, Higgs filed a FOIA request with the United States Park Police seeking “a complete copy of everything pertaining to the homicide convictions.” The Park Police notified Higgs that it would not release any documents because they were exempt under various exemptions, including the “privacy exemption.”  Higgs then filed a lawsuit to challenge the FOIA denial. The Park Police subsequently released some responsive documents to Higgs.

Higgs argued that the government’s response to Higgs’ FOIA request was inadequate on several grounds. The district court agreed in part, ruling that Higgs was entitled to certain records because (1) he demonstrated a sufficient public interest in trying to uncover government misconduct and (2) the government failed to identify what privacy interests would be impaired and to the extent they would be negatively impaired

On appeal, the government argued that: (1) the district court clearly erred in evaluating the individual privacy interests and (2) Higgs did not advance a sufficient public interest that warranted the disclosure of the subject records.  Higgs responded that the public interest he advanced was sufficient to warrant disclosure as he sought to reveal government misconduct and educate the public about how the Department of Justice carries out its law enforcement duties.

The 7th Circuit concluded that Higgs did not advance a sufficient interest under the FOIA privacy exemptions’ “balancing test.” The Court rejected Higgs’ government misconduct argument. The Court also found Higgs’ argument of an educational benefit a “vague interest” that did not meet the threshold burden to justify disclosure. 

Although this case strictly dealt with federal FOIA law, the rationale in this case is helpful in understanding how an Illinois court might analyze the “personal privacy” exemption and apply that exemption’s balancing test. Local governments, especially their police departments, should always review records based on sensitive or tragic events through the lens of both 7(1)(c) and 7(1)(d) of the Illinois FOIA statute to bolster their reasoning for withholding documents for privacy concerns.

Post Authored by Ashton Tunk and Julie Tappendorf, Ancel Glink

Tuesday, August 13, 2019

Amendments to OMA Allow Alternative Training for Municipal Officials

The Illinois Governor just signed legislation making it easier for municipal officials to complete the required Open Meetings Act training. Under current law, all elected and appointed members of public bodies in the state of Illinois must complete the electronic OMA training offered by the Illinois Attorney General within 90 days of taking office. Previous amendments to the OMA authorized  officials in park districts, school districts, drainage districts and others to satisfy the training requirement through alternative programs. Pursuant to P.A. 101-814, an elected or appointed official on a public body of a municipality may satisfy the OMA training requirements by participating in a training sponsored or conducted by an organization that represents municipalities in the state of Illinois. 

Tuesday, August 6, 2019

Public Body Did Not Violate FOIA in Multiple FOIA Requests

The second FOIA case decided last week is Walker v. Bruscato, 2019 IL App (2d) 170775. Walker had filed multiple FOIA requests with the Winnebago States Attorney's Office for records pertaining to his murder indictment. The first request asked for a copy of the grand jury transcript. The second request asked for a "current or previous list of the types and categories of records available for inspection and copying maintained in your office." His third request asked for a copy of the record of indictments in May and June of 2001. His fourth request asked for a copy of the grand jury votes and deliberation for all indictments returned during that same time period. 

The County provided the first requested record and responded to the second request that it had no responsive records. The County denied the third and fourth requests, citing to the confidentiality of grand jury records.  Walker then sued, claiming the County violated FOIA related to all four FOIA requests. The circuit court ruled in the County's favor, and Walker appealed.

The appellate court agreed with the circuit court's ruling in the County's favor. First, the court found that the County did, in fact, provide the transcript in response to the first FOIA request. Second, the court held that Walker had no cause of action under Section 11 of FOIA because he was not "denied access" to any public record since the requested records simply did not exist, stating that "A request for records not yet created is invalid." The court also rejected Walker's argument that the County failed to maintain the list as required by section 5 because the County created the list following Walker's request and subsequently provided a link to that list to Walker. Finally, the court agreed that the grand jury records requested in the third and fourth requests were exempt from release as state law expressly prohibits disclosure of grand jury proceedings. 

Monday, August 5, 2019

Quorum Forum Podcast Episode 29: Avoiding Employment Mistakes

Ancel Glink just released Episode 27 of its Quorum Forum Podcast: Avoiding Employment Mistakes. In this episode, Ancel Glink attorney John Hayes discusses ways employers can avoid common mistakes and law clerk Mike Halpin provides an update on recent employment laws and cases. And, as usual, Ancel Glink partner Dan Bolin keeps the episode lively and entertaining. 

Listen to this episode here.

Thursday, August 1, 2019

Public Body Did Not Violate FOIA Where Requested Records Did Not Exist

We don't see a lot of FOIA cases out of the appellate courts but two were issued yesterday that offer some guidance to public bodies on challenges to FOIA denials.

In Barner v. Fairburn, 2019 IL App (3d) 180742, Barner sued the Canton Police Department after the Department denied his FOIA request for a copy of dispatch transcripts for a particular time-period on May 12, 2015, as well as other police records during that time period. The Department provided a copy of an incident report but not the dispatch recording, stating in its response that the recording was no longer available because the dispatch system only keeps recordings for a few months. Barner sued, claiming the Department violated FOIA because it did not provide the requested records. He also claimed that the FOIA response was insufficient because it did not provide specific reasons for the denial of his request. The circuit court dismissed the case, and Barner appealed. 

On appeal, the Department argued that the dismissal was proper because FOIA does not compel a public body to turn over information the public body does not retain. The Department supported its argument with an affidavit that the FOIA Officer searched for the requested records and was unable to provide the recording because it no longer existed. 

The appellate court agreed with the Department that it did not violate FOIA by failing to turn over records that did not exist at the time of the request, citing to previous cases holding that "The nonexistence of requested documents is a cognizable affirmative defense to a complaint grounded in FOIA." The court also rejected Barner's argument that the Department's response was inadequate because it did not provide a "detailed factual basis" for the denial, holding that this particular requirement of FOIA only applies when the public body is claiming an exemption for a denial.