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Wednesday, August 26, 2020

New COVID Restrictions for 2 Illinois Regions

Since June 26, 2020, the State of Illinois has been in Phase 4 of the Restore Illinois COVID-19 plan established by the Governor's office. As we reported previously, the Governor had modified the Restore Illinois plan on July 15th to divide up the state into 11 regions to would allow the State to address resurgences of COVID-19 on a more individualized basis. In the last week, the Governor issued two orders that issued new mitigation requirements for Regions 4 and 7.

Region 4 (Metro East)

On August 18, 2020, Governor Pritzker issued EO 2020-51 instituting new mitigation and health restrictions for the Metro East region, which includes Bond, Clinton, Madison, Monroe, Randolph, St. Clair, and Washington Counties. 

The EO places new restrictions on bars and restaurants, including the following:

  • require closure at 11 pm
  • restrict the number of persons at tables for indoor dining
  • require the removal of bar stools from bar areas
  • prohibit dancing
  • mandate customer reservations
  • have customers wait off-premises before being seated. 
Meetings and social events are limited to the lesser of 25 people or 25% of room capacity, and no party buses. 

Gaming and casinos must close at 11 pm and are limited to 25% capacity. 

Region 7 (South Suburban)

Less than a week later, the Governor announced that Region 7, which includes Will and Kankakee counties, would also be subject to new mitigation requirements effective August 26th. These include the following:

The following new mitigation requirements will apply to bars and restaurants:

  • require closure at 11pm
  • prohibit indoor service
  • remove bar stools and prohibit congregating at bars
  • no dancing or standing indoors
  • no seating of multiple parties at one table
  • reservations required for restaurants
Meetings and social events will be limited to 25% capacity, and no party buses.

Gaming and casinos will have to close at 11 pm and will be limited to 25% capacity

Tuesday, August 25, 2020

DCEO Issues Updated Dining Restrictions for all 11 Regions of Illinois

New restrictions were announced today for Illinois bars and restaurants. These restrictions go into effect tomorrow, August 26, 2020. 

The new guidelines will require customers to wear a face covering during any interaction with wait staff and other other employees at bars and restaurants. That means that customers must wear face coverings when employees take customer orders, deliver food and beverages, and service tables. Face coverings must also be worn when picking up carry out orders. These new requirements apply to indoor and outdoor dining facilities throughout the State of Illinois, in all 11 regions.

The updated dining guidelines can be found on DCEO's website here.

Liquor Control Commission Issues Guidance to Municipalities of Emergency Suspension Powers

The Illinois Liquor Control Commission recently issued guidance to local liquor commissioners regarding their authority to temporarily suspend a liquor license for a period of 7 days in certain circumstances pursuant to section 7-5 of the Illinois Liquor Control Act. Section 7-5 provides as follows:

If the local liquor control commissioner has reason to believe that any continued operation of a particular licensed premises will immediately threaten the welfare of the community he may, upon the issuance of a written order stating the reason for such conclusion and without notice or hearing order the licensed premises closed for not more than 7 days, giving the licensee an opportunity to be heard during that period, except that if such licensee shall also be engaged in the conduct of another business or businesses on the licensed premises such order shall not be applicable to such other business or businesses.

The Liquor Control Commission advises local liquor commissioners to take the following steps should a local liquor commissioner decide to exercise this authority against re-opened liquor license establishments whose operations are immediately threatening the welfare of the community, including the following:

1. Consult City Attorney.

2. Commence an investigation.

3. If necessary, notify the bar/restaurant in writing that LLCC could immediately cease the license without a hearing if they violate restaurant/bar reopening requirements.

4. If necessary, issue a written order ceasing the liquor license for no more than 7 days which may include the following information:

 a. Cite 235 ILCS 5/7-5 of the Illinois Liquor Control Act.

 b. State date/s and time/s of when order is in effect.

c. State the basis for LLCC conclusions that continued operation of the bar/restaurant will immediately threaten the welfare of the community.

d. State that the licensee has the right to be heard during the license cessation period. For example, LLCC could allow the licensee to submit a plan to help ensure compliance with State bar/restaurant requirements. 

e. Sign and date the order.

f. Require law enforcement agency to personally serve the order on owners/officers.

g. Monitor and enforce order if necessary. 

This guidance reminds municipalities of the authority they already have under state law to deal with licensed establishments whose operations are threatening the public welfare, such as during a pandemic. 

Monday, August 24, 2020

President Trump Appeals Twitter Case to the U.S. Supreme Court

Last Thursday, President Trump filed a petition for leave to appeal asking the U.S. Supreme Court to overturn a previous ruling by an appeals court that found his actions in blocking and banning users on Twitter to be in violation of the First Amendment. You can read the petition here.

The question that President Trump is asking the U.S. Supreme Court to answer is this:

Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.

You may recall that we have reported on this case on Municipal Minute before, including a summary of the Second Circuit Court of Appeals ruling against President Trump. You can read the Second Circuit's decision in Knight First Amendment Institute v. Donald J. Trump hereThat ruling determined that because the President had used his @RealDonaldTrump Twitter account to discuss government business and report on and even take official actions, it was considered a public forum for purposes of the First Amendment. As a result, his banning and blocking individuals solely because of their critical speech violated their free speech rights under the First Amendment.

The petition to the Supreme Court contains much of the same arguments made at the court of appeals level. The petition includes a summary that argues that the court of appeals ruling was in error because it "blurs the line between state action and private conduct" and ignores the critical distinction between the President's official statements on his personal Twitter account and his personal decision to block users from his account. The result, the President argues, is to jeopardize the right of public officials from the President to local village councilpersons to insulate their personal social media accounts from harassment, trolling, or hate speech. A similar argument was made to, and rejected by, the court of appeals which determined that because the President had so intertwined his official speech and actions on his personal Twitter account, it became a protected space for users to criticize and engage in other protected speech.

We had been monitoring this case to see if it would be appealed, and will certainly keep our readers advised as to the next steps, including whether the Supreme Court will grant the petition and hear this case. 

Wednesday, August 12, 2020

PAC Issues Binding Opinion Regarding Medical Provider Records

The PAC recently issued a new binding opinion (PAC Op. 20-006) finding that the Illinois Department of Corrections (IDOC) improperly denied a FOIA request that sought copies of aggregate data on head injuries incurred by inmates in IDOC custody and policies for evaluating head injuries of IDOC inmates and employees. IDOC had denied possessing or maintaining any policies or aggregate data responsive to the request. IDOT acknowledged that its healthcare vendor, Wexford Health Sources, might possess responsive records but argued that Wexford’s policies were confidential and proprietary business documents that are exempt from FOIA disclosure by FOIA exemption 7(1)(g). The requester appealed IDOC’s denial with the PAC. 

Since IDOC contracted with Wexford to provide medical service to inmates, the PAC concluded that responsive aggregate data and policies in Wexford's possession that directly relate to providing medical care to IDOC inmates on IDOC’s behalf are considered public records subject to disclosure under FOIA. Specifically, FOIA states that public records possessed by a party with whom a public body has contracted to perform a governmental function on behalf of the public body, and that directly relate to the governmental function, are considered public records under FOIA. Relying on prior federal and state cases, the PAC determined that both types of records sought by the FOIA request directly relate to the governmental function of providing medical care for inmates. The PAC explained that the “direct relation” requirement helps ensure that parties can only access those records of private contractors that are truly related to its exercise of a governmental function on behalf of a public body, rather than records that are only incidentally or tangentially related to a contract with a public body. Indeed, the PAC highlighted that the purpose of FOIA is to ensure that governmental entities are not permitted to avoid their disclosure obligations under FOIA by contractually delegating their responsibility to a private entity.

The PAC also concluded that IDOC improperly rejected the sought records under FOIA section 7(1)(g) (the trade secret exemption). The PAC noted that IDOC failed to specifically prove that the responsive records constitute a “trade secret, commercial or financial information” and failed to demonstrate that disclosing these records would cause competitive harm. As a result, the PAC concluded that IDOC failed to prove by clear and convincing evidence that any responsive records in Wexford’s physical custody were exempt under FOIA exemption 7(1)(g). 

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, August 11, 2020

State of Illinois Adopts Emergency Enforcement Rules on Face Coverings and Gatherings

Last week, Governor Pritzker announced that his administration filed new IDPH COVID-19 emergency rules for businesses, schools, and child care establishments regarding the use of face coverings and the size of gatherings. 

The rules became effective on August 7, 2020, and they require people over age two to wear a face covering (a mask or cloth face covering to cover their nose and mouth) when they are in a public place and unable to maintain at least a six-foot social distance. The face covering requirement applies whether in an indoor space, such as a store, or in an outdoor space. Any business, service, facility, or organization open to the public or to employees (including schools and day cares) must require employees, customers, and other individuals on the premises to cover their nose and mouth with a face covering when on premises. The emergency rule also prohibits gatherings of more than 50 people (or gatherings of 50% or more of a building’s maximum occupancy if 50% of a building maximum occupancy is less than 50 people). 

The rules provide multiple opportunities for compliance before a penalty is issued. The rules acknowledge that communities may be reluctant to employ existing, pre-pandemic enforcement laws (like revoking a license) so the new rules are intended to provide some flexibility but also more control to keep residents and businesses safe.  

The new enforcement and penalty process is described as follows: 

First, businesses would be given a warning in the form of written notice and encouraged to voluntarily comply with public health guidance. 

Second, businesses that do not voluntarily comply would be given an order to have some or all of their patrons leave the premises as needed to comply with public health guidance and reduce risks. 

Third, if the business continues to refuse to comply, the business could be subject to a fine ranging from $75.00 to  $2,500.00. 

The emergency rules also reinforce the authority of IDPH and local health departments to investigate COVID-19 cases and reaffirm that businesses have a responsibility to cooperate with those investigations.

Post Authored by Julie Tappendorf & Eugene Bolotnikov, Ancel Glink

Monday, August 10, 2020

1st District Issues Opinion On FOIA and Emails/Texts on Personal Devices

The issue of whether the emails/text messages of a public official sent or received on a private device or personal account are subject to public release under FOIA has been discussed many times on this blog. We reported previously on the Champaign v. Madigan case where the 4th District Appellate Court ruled that some electronic communications on private devices or personal accounts may be releasable depending on the circumstances surrounding the communication (i.e., sent during a meeting, sent to a majority of the public body, forwarded to a government account or device). Since that case was decided, the Public Access Counselor of the Illinois Attorney General's Office (PAC) has issued a number of opinions that have gone further than the 4th District case and determined that any electronic communication sent on any device that relates to government business will be subject to FOIA.
Recently, the 1st District Appellate Court weighed in on this issue and also seemed to depart somewhat from the 4th District's opinion. In Better Government Association v. City of Chicago Office of Mayor, 2020 IL App (1st) 190038, the 1st District Appellate Court found the City in violation of FOIA for not turning over text messages and emails of certain City officials that were contained on the officials' private devices. 

In 2016, the Better Government Association (BGA) submitted FOIA requests to the City of Chicago Office of Mayor and the City’s Department of Public Health (CDPH), seeking records relating to the discovery of lead in the drinking water at Chicago Public Schools (CPS). In response, the City produced some records, but withheld or redacted others citing various FOIA exemptions. BGA filed a lawsuit claiming that the City violated FOIA by failing to inquire whether the City officials had any personal text messages and e-mails that were responsive to the request. After the circuit court ordered the defendants to search the personal text messages and e-mails of the City officials for responsive records, the City appealed. The 1st District Appellate Court upheld the circuit court’s order and concluded that communications pertaining to public business within City officials’ personal text messages and e-mail accounts are public records under FOIA, and the City failed to conduct a reasonably diligent search by failing to inquire whether the personal accounts of officials named in the FOIA requests contained responsive records. 

The 1st District acknowledged that individual officials are not themselves public bodies under FOIA. However, the court determined that this does not mean their communications about public business are not public records that were prepared for, used by, received by, possessed by, nor controlled by a public body. The 1st District cited the 4th District's opinion in Champaign v. Madigan, which determined that individual city council member communications that were sent or received from personal accounts while the public body was conducting business were public records in the public body’s possession. Although the 4th District concluded that the city council was conducting public business only in certain limited circumstances (such as when a quorum of council members was involved) the 1st District did not restrict its ruling to these circumstances. Instead, the 1st District held that individual officials could function as a public body (and their communications be subject to FOIA) in other circumstances beyond a meeting or a quorum. In this case, the 1st District found that the individual City officials could function as public bodies without any official meeting having been convened because some of them had the authority to make unilateral decisions that would be binding on the City. The 1st District reasoned that concluding otherwise would allow public officials to shield information from the public’s view by using their personal accounts rather than their government-issued ones, which would be inconsistent with FOIA’s goals of transparency, accountability, and promoting public access to information. 

The 1st District rejected the City's concern that requiring public officials to search their personal accounts for communications regarding public business would diminish FOIA’s privacy safeguards since only communications pertaining to public business, rather than information concerning the private lives of public officials, would be subject to disclosure. The 1st District also rejected the City's concerns about the administrative burden of obtaining these communications from individual City officials within the limited time-frame allowed under the FOIA statute for response.

Based on the 1st District's finding that the BGA demonstrated that the City officials used their personal accounts for public business, and that the City failed to perform any inquiry into their officials’ personal accounts, the City was not entitled to a presumption of good faith for a search they failed to conduct. As a result, the First District determined that the City was required to ask whether City  officials used their personal accounts for public business to satisfy FOIA’s requirement of conducting a reasonably diligent search for responsive records.

What does this mean for Illinois local government officials?  That could depend on where they are located in the State. The 4th District's decision in Champaign v. Madigan takes a more limited view on what communications are subject to FOIA when they are sent or received on an official's personal device or account. The 1st District, on the other hand, seems to take a broader view on whether a particular communication sent or received on a personal device or using a personal account is a public record subject to FOIA. As we have stated in previous posts on this topic, it may be best practice to encourage public officials to use their official government devices and/or accounts to communicate about public business and, if they do happen to use their personal device or account for government business, to make sure the officials forward those communications to an official government account.

Post Authored by Julie Tappendorf & Eugene Bolotnikov, Ancel Glink

Friday, August 7, 2020

Quorum Forum Podcast Ep. 42 Released

We advised our readers previously that they could participate "live" in the taping of Quorum Forum Episode 42: Sunshine Laws. For those of you who could not be there, you can now listen to the new episode here. A summary of the episode is below:

We're celebrating summertime on Ancel Glink's Quorum Forum podcast talking about sunshine laws with Eugene Bolotnikov, including the latest guidance from the Public Access Counselor on the Open Meetings Act and Freedom of Information Act during the COVID-19 pandemic. Then, Catie Coghlan reviews how the State of Illinois and large counties are distributing CARES Act Coronavirus Relief Funds to local governments. 

How have your local government meetings changed during the pandemic? Email us at podcast@ancelglink.com! 

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer: ancelglink.com/disclaimers

Thursday, August 6, 2020

Federal Court Denies TRO to Village in Challenge Against Governor's COVID Orders

As we have reported in the past, there have been a number of lawsuits filed against the Illinois Governor challenging his authority to impose restrictions on various activities and businesses to address the COVID-19 pandemic. One of these lawsuits was one brought by the Village of Orland Park, an Orland Park business, and individuals in Village of Orland Park v. Pritzker seeking emergency injunctive relief to stop the Governor from enforcing various executive orders restricting activities and businesses. A federal district court judge recently issued a ruling in that case denying the Village and other plaintiffs injunctive relief and  in favor of the Governor and dismissed the case.

The lawsuit made a number of arguments against the Governor's actions relating to the pandemic, including that the Governor's orders violated due process rights and protections and exceeded the Governor's authority, among other claims. The Village also argued that it should be allowed to establish its own plan for reopening businesses and other activities in the Village which plan would allow local businesses and activities to reopen sooner than the Governor's executive orders would allow. 

The district court judge rejected the plaintiffs' request for injunctive relief, finding that the plaintiffs did not have a likelihood of succeeding on the merits of their constitutional and statutory claims. The court rejected plaintiffs' argument that it had the right to a hearing before the Governor could impose the executive orders. The court also rejected plaintiffs claim that the orders affected their right to travel and association, finding that the orders affected access to businesses but not travel between places and that the restrictions were facially neutral and advanced a significant government interest in protecting the health of Illinois residents. The court also found that the Village's claims were barred by sovereign immunity, which protects the state from lawsuits from local governments. Finally, the court also found that the balance of harms weighed more heavily in favor of the Governor in protecting the health of Illinois residents from the COVID-19 pandemic, as compared to the minimal harm placed on the plaintiffs in complying with these orders.  

The plaintiffs have until August 28th to appeal the denial of their TRO and preliminary injunctive relief request to the Seventh Circuit Court of Appeals.

Wednesday, August 5, 2020

Court Denies Civil Penalties Request in FOIA Case

An Illinois appellate court recently issued a ruling denying an individual's request for civil penalties under the Freedom of Information Act. Boggan v. FOIA Office of the Department of Corrections, 2020 IL App (4th) 190347-U

In 2016, an inmate at the Dixon Correctional Center filed a FOIA request with the DCC seeking records related to the source and quality of water at the DCC. The DCC responded that it did not possess responsive records, and the inmate filed a request for review with the PAC. In 2017, the PAC issued an advisory opinion finding that DCC failed to conduct a reasonably diligent search, including where and how the records are maintained, and the specific measures the DCC’s chief engineer took to search for those records. The advisory opinion asked the DCC to conduct a renewed search and issue a supplemental response to the requestor. The inmate subsequently filed a lawsuit against DCC in November 2017, after he had not yet received the records, asking the court to order DCC to provide responsive records and impose civil penalties against DCC for acting in bad faith by willfully and intentionally failing to comply with his request. Although the circuit court ordered DCC to provide the records, the court did not impose any civil penalties on DCC. 

On appeal, the appellate court upheld the circuit court’s denial of civil penalties, finding that civil penalties are not available under FOIA for the review of a PAC advisory opinion. The appellate court noted that only a public body’s failure to comply with a binding opinion, rather than an advisory opinion like the one at issue, leads to a rebuttable presumption that a public body willfully and intentionally failed to comply with FOIA. Since the circuit court found that the DCC did not willfully and intentionally fail to comply with the request, the appellate court reasoned that civil penalties against the DCC were unwarranted. Instead of implying bad faith on the part of the DCC, the PAC’s advisory opinion merely found that DCC failed to sufficiently explain its search and expressed concern with the narrowness of the search. Additionally, the court found that DCC replied each time the PAC asked it to do so, except in response to the PAC’s advisory letter. Also, the records DCC eventually produced in August 2018 were created after the inmate’s January 2016 FOIA request, so the records were unavailable at the time of petitioner's initial FOIA request. Based on these facts, the appellate court found that the trial court did not erroneously rule that the DCC did not willfully and intentionally fail to comply with FOIA or otherwise act in bad faith.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, August 4, 2020

Court Rules in City's Favor in FOIA Challenge

An appellate court recent ruled in favor of a public body in a FOIA challenge in Sherrod v. City of Kankakee, 2020 IL App (3d) 190374-U. 

In 2016, an inmate (plaintiff) filed two FOIA requests with the City of Kankakee for records regarding the murder of a specific individual. After the City conducted a reasonably diligent search for records responsive to the request, the City provided responsive records in the City’s possession and custody, while denying portions of both requests for records the City was unable to locate during their searches. After the plaintiff filed a request for review with the PAC to appeal the City’s denial of certain records, the PAC issued a nonbinding letter requesting the City to provide a requested video in VHS format to the plaintiff, instead of the DVD format originally provided by the City. After the City did not provide the video in VHS format, the plaintiff filed a lawsuit, alleging that the City failed to conduct a reasonably diligent search for records responsive to his request and otherwise failed to properly respond to his FOIA requests. The circuit court dismissed the case, however, finding that the City provided all responsive records in its possession after conducting an adequate search under FOIA for the requested information. On appeal, and the appellate court affirmed the decision in favor of the City.

First, in considering whether the City conducted a reasonable search, the appellate court looked at whether the City's search was reasonably calculated to discover the requested documents and not whether it actually uncovered every existing document. In this case, the City submitted a detailed affidavit describing the locations where City personnel searched for responsive records and ultimately which records the City identified and failed to identify. The appellate court determined that the City’s affidavit demonstrated the City's compliance with its obligation to conduct a reasonably diligent search under FOIA. Moreover, the appellate court noted that the City’s affidavit describing the City’s exhaustive search for records should be accorded a presumption of good faith, which cannot be rebutted by the plaintiff’s purely speculative claims about the existence of other documents.

Next, since the only method available to the City for copying a responsive video was on a DVD because the City lacked the capability to copy the video into the requested VHS format, the appellate court found that the City properly responded to plaintiff's FOIA request when it provided the record in the DVD format. Importantly, the appellate court noted that the passage of time and technological advancements made it unfeasible for the City to copy the video in VHS format. Also, the City’s affidavit demonstrated that the City found an outside company that could copy a VHS video into DVD format, but the company was unable to copy a DVD into a VHS format. As a result, the appellate court determined that the City complied with FOIA by providing the plaintiff with the DVD copy available to the City.  

Also, since the City’s affidavit demonstrated that the City did not possess the requested enhanced FBI within the City’s possession, and because the plaintiff failed to file a counter-affidavit to rebut the City’s affidavit, the appellate court found that the City did not violate FOIA by denying plaintiff's request for items it did not possess. 

Post Authored by Eugene Bolotniko

Monday, August 3, 2020

Case Addresses Employee Termination and Political Affiliation

On July 21, 2020, the Seventh Circuit Court of Appeals decided in Hanson et.al. v. LeVan that the firing of deputy assessors because of their political affiliation violated their First Amendment rights. 

Dawn Hanson and her fellow plaintiffs worked as Deputy Assessors in the Milton Township Assessor’s Office, when Chris LeVan was elected as the new Assessor. Plaintiffs had publicly supported LeVan’s predecessor Bob Earl in his reelection campaign. LeVan won election, and shortly after taking office, he fired plaintiffs, who then sued him, alleging that their termination violated their First Amendment rights.

As a general rule, the First Amendment prohibits the firing of public employees on the basis of their political affiliation. There is an exception to this rule when party affiliation is an appropriate requirement for the position involved. This exception is called the Elrod-Branti exception, named after  two Supreme Court decisions that held that “without political alignment in certain positions, employees occupying those positions could obstruct the implementation of policies presumably sanctioned by the electorate, who placed the current administration in power.” So, when a job description expressly references political affiliation as a requirement for the position, the political affiliation of an employee can be reason for dismissal without violating the First Amendment rights of the employee in question. The Elrod-Branti exception is also called the policymaking exception, because political affiliation of an employee is only of importance for policymaking positions. 

In defending his decision to terminate plaintiffs, LeVan pointed out that the Illinois Tax Code confirmed that the Deputy Assessor position is one for which political alliance is a valid requirement. Plaintiffs, on the other hand, argued that the Deputy Assessor positions did not give them any policymaking authority, and that they were not authorized to perform any advisory or managerial functions. They argued that their positions involved taking measurements of property and inputting those measurements, along with other collected data, into computer programs and formulas that were set by statutes, regulations, state-issued guidelines, and the County and Township Assessors. They further claimed they had no control or discretion over these formulas and programs. In sum, plaintiffs alleged that because they held low-level positions lacking political discretion and for which political affiliation was not a valid requirement, they could not be terminated for political affiliation.

The district court had denied LeVan's motion to dismiss the case on qualified immunity grounds, and LeVan appealed. The Seventh Circuit agreed with the district court, finding that the Deputy Assessor position was a lower-level position involving no political discretion in performing the assessments. The Court further held that LeVan should have understood that firing the plaintiffs because of their political affiliation violated their First Amendment rights. As a result, LeVan was not entitled to qualified immunity at this stage of the litigation, and the case was remanded back to the district court.

Post Authored by Joyce Jezeer and Julie Tappendorf, Ancel Glink