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Tuesday, January 7, 2020

PAC Wades into Records Retention Territory in 13th Binding Opinion of 2019

On the last day of 2019, the Illinois Public Access Counselor (PAC) office issued its 13th binding opinion for 2019. Unfortunately, the opinion was uploaded to the Attorney General's website after we posted our summary of 2019 FOIA opinions was published, so we are summarizing it separately. 

In PAC Op. 19-013, the PAC found a public body in violation of FOIA for not providing a tape of a gathering of public officials. The public body denied the request based on its opinion that because there had been no quorum of the public body at the gathering, there was no meeting so the tape was not a public record subject to FOIA and did not need to be released. The public body had also apparently erased the tape. The requester filed an appeal with the PAC, and the PAC determined the tape was a public record under FOIA because the public body members discussed public business at a "gathering" of 3 members of the 7 member body. As a result, the PAC stated the tape should have been released upon request. 

The PAC also found the public body in violation of FOIA because it had erased the tape after a FOIA request was received. This appears to be the first time the PAC has interpreted FOIA to incorporate a records retention obligation (which is expressly a part of the Local Records Act). This is a significant development in the interpretation and application of the FOIA statute and appears to stretch FOIA (and, therefore, the PAC's jurisdiction and authority) beyond records release and fully into records retention territory. The PAC supported its newly granted authority by citing cases from other states. The one Illinois case the PAC did cite actually referred to the retention provisions of the Local Records Act and State Records Act to supports the court's discussion of a public body's obligation to retain public records. In my opinion, it seems inappropriate for the PAC (rather than a court) to interpret FOIA in a manner that appears to expand its jurisdiction beyond what the General Assembly intended.  


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