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Wednesday, March 17, 2021

Court Upholds Use of "Deliberative Process" FOIA Exemption

An Appellate Court recently interpreted the "deliberative process" (sometimes known as the draft document) exception in section 7(1)(f) of the Freedom of Information Act in Fisher v. Office of the Illinois Attorney General. In this case, the court found that a public body (in this case, the Attorney General) did not violate FOIA in denying a request for certain records it claimed were exempt under that exception.

In 2012, the Attorney General (AG) filed a lawsuit against several Cathode Ray Tube (CRT) manufacturers, alleging they conspired to fix prices on certain products resulting in overcharges to Illinois consumers. Ultimately, the AG entered into settlement agreements with all of the manufacturers. In April 2019, an individual representing several clients that submitted claims as part of the CRT settlement, made a FOIA request to the AG, seeking communications between the AG and KCC Class Action Services LLC related to the CRT settlement. The AG denied the FOIA request, claiming that the communications were exempt from disclosure under FOIA’s "deliberative process" exemption in FOIA section 7(1)(f). The requester then sued the AG, alleging that the AG violated FOIA by improperly withholding the requested communications under the deliberative process exemption. The circuit court upheld the AG's denial of the FOAI request and the requester appealed. 

The Appellate Court agreed with the circuit court and also upheld the AG's use of the deliberative process exemption to deny the FOIA request. To exempt records under FOIA’s deliberative process exemption, the Appellate Court clarified that responsive materials must be both (1) inter or intra agency and (2) predecisional and deliberative. 

As to the first requirement, the court concluded that the requested communications between the AG and KCC were intra-agency materials under FOIA’s deliberative process exemption. As AG’s outside consultant, KCC provided the AG with analyses and recommendations regarding the distribution of settlement proceeds, which the AG relied on to create the final settlement distribution plan, and KCC performed essentially the same function in the AG's deliberative process as the AG would have performed if it had chosen to perform the preliminary review of each claim itself. 

Regarding the second requirement, the court determined that the records were predecisional because they were required in order for the AG to adopt and submit its final settlement plan in the CRT lawsuit. The court also determined that the records were  deliberative because the communications between the AG and KCC were related to the process that the AG engaged in to formulate its policies and to create a final settlement plan in the CRT litigation. In this case, AG had retained KCC as an outside consultant to make determinations, subject to the AG approval, regarding which claimants satisfied requirements for participation in the settlement. To that end, KCC reviewed claims and made recommendations to the AG that it used in its final settlement determinations.

This case provides some helpful guidance to public bodies in how the courts will apply the "deliberative process" exemption in section 7(1)(f) of FOIA, and also some insight into the Attorney General's view of this exemption, given that the public body in this case was the AG.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink


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