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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Thursday, January 27, 2022

New Law Provides Process for Removing Archaic Restrictions from Property Documents

In 2021, the Illinois General Assembly passed P.A. 102-0110, which became effective on January 1, 2022. This new law amends the Counties Code to permit Illinois residents to modify deeds and restrictive covenants that had been recorded against their properties and include language that restricts the use, transfer, lease, or occupancy of real property on the basis of race, color, religion, or national origin. The law is intended to bring property deeds and other recorded documents in line with Section 3-105 of the Illinois Human Rights Act, which makes void any “condition, restriction or prohibition . . . which directly or indirectly limits the use or occupancy of real property on the basis of race, color, religion, or national origin.”

The law provides procedural guidelines for Illinois residents to amend property documents associated with residential, commercial, and other property they own. It also provides a mechanism that allows condominium associations and housing cooperatives to amend restrictive covenants with approval by the majority of the members of the condominium or cooperative board. If an owner or member of these communities seeks to amend the covenant, and the board fails or refuses to do so, the owner or member can file an action to compel the filing of modification paperwork to remove the illegal restriction.

All proposed amendments to deeds and restrictive covenants must go through the county recorders office where the property is located, which will then send the modification request to the State’s Attorney’s office for review for proper form. County recorders may impose a filing fee for these covenant modifications in an amount up to $10 per recording.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Wednesday, January 26, 2022

Appellate Court Reverses Order Requiring Release of Records Subject to Protective Order

In 2019, the Chicago Sun-Times submitted a FOIA request to a police department (CPD) seeking records regarding the death of a named individual. After the CPD denied the request on the basis that the department had previously provided the newspaper with all available non-exempt records responsive to the requestor’s prior 18 FOIA requests to CPD, the newspaper filed a lawsuit alleging various FOIA violations against CPD. CPD argued that certain responsive records were exempt from disclosure because protective orders from 2012 and 2014 prohibited the disclosure of grand jury investigative records. In August of 2020, the circuit court rejected CPD's arguments and ordered CPD to disclose the responsive records. 

On appeal, the appellate court in Chicago Sun-Times v. Chicago Police Department reversed the trial court's ruling finding that requiring CPD to comply with the August 2020 court order rather than the 2012 and 2014 protective orders would put CPD in a Catch-22 of having to decide which of the conflicting court orders the CPD was required to follow. The appellate court also held that the trial court erred in ordering CPD to release the records in full based on CPD’s failure to plead affirmative defenses because the trial court should have first conducted an "in camera" review of the responsive records determine which records, if any, were protected from disclosure by the 2012 and 2014 protective orders.

On remand, the appellate court instructed the circuit court to require CPD to prepare an index of withheld records and prepare all records responsive to the newspaper's FOIA request for in camera review by the circuit court. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, January 25, 2022

Appellate Court Upholds Ruling in Favor of Public Body in FOIA Case

After a public body denied a FOIA request for emails based on applicable FOIA exemptions, the requestor sued the public body claiming that the records were improperly withheld. After conducting an "in-camera" inspection of the records that had been withheld from release, the trial court agreed that the records were properly exempt from disclosure, and the requester appealed.

On appeal, the requestor argued that the withheld responsive records could be redacted to protect certain exempt information and released to the requester. However, because the record on appeal did not include the emails that had been reviewed by the trial court, the appellate court presumed that the trial court’s order was in conformity with law and had a sufficient factual basis and upheld the ruling in favor of the public body. Robinson v. Township High School District 113 

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, January 24, 2022

Federal Court Dismisses Civil Rights Suit Challenging $50 Parking Ticket

Recently, the Seventh Circuit Court of Appeals upheld the dismissal of a civil rights lawsuit against an Illinois municipality by a person who had been issued a parking ticket. Lewis v. Alsip. The driver filed the section 1983 action against the municipality after she was issued a $50 parking ticket for parking her car on a secondary snow route. She claimed her due process rights were violated because the municipality had not posted signage on the street informing drivers when snow prohibited parking. The federal district court dismissed the case and the driver appealed to the Seventh Circuit. The Court of Appeals held that due process only requires a legislature to enact and publish laws. In this case, the municipality satisfied the "publication" requirement by posting its ordinances on its website and making those ordinances publicly available but did not require the posting of signage.

Friday, January 21, 2022

Illinois Supreme Court Finds City PSEBA Ordinance Invalid

The Illinois Supreme Court issued an opinion in an appeal of a case filed by a firefighter union against an Illinois City that challenged the City's PSEBA ordinance. Specifically, the union had argued that the City's definition of "catastrophic injury" in its ordinance was inconsistent with the PSEBA statute and the Illinois Supreme Court's definition of that term in the case Krohe v. City of Bloomington. The circuit and appellate courts had ruled in favor of the union and the City appealed to the Illinois Supreme Court. Today, the Illinois Supreme Court issued its decision affirming the ruling in favor of the union, finding the City's definitions in its PSEBA ordinance of "catastrophic injury" and "injury" to be inconsistent with the PSEBA statute. International Assoc. of Firefighters v. City of Peoria, 2022 IL 127040.

In 2018, the City passed an ordinance amending its City Code to define "catastrophic injury" for purposes of determining whether an officer was entitled to benefits under the Public Safety Employee Benefits Act (PSEBA) to add a requirement that an officer show that his or her on-duty injury prevented the officer from "performing any gainful work." The local firefighters union filed suit against the City, claiming that the City had no authority to modify the definition of "catastrophic injury" and that the definition was inconsistent with the PSEBA statute that does not include that phrase as well as the Illinois Supreme Court's interpretation of "catastrophic injury" in the Krohe decision. The union also challenged the ordinance's definition of "injury" as being inconsistent with the PSEBA statute. The City defended its ordinance and definitions, arguing that it had the authority to define these terms based on its home rule powers. After both the circuit court and appellate court ruled against the City, the City appealed to the Illinois Supreme Court.

The Illinois Supreme Court held that the City's definition of "catastrophic injury" that added the requirement that an officer show that the officer's disability prevented the officer from "performing gainful work" was inconsistent with the PSEBA statute. The Court found that this added language impermissibly disqualified offices who might otherwise be entitled to benefits under the PSEBA statute. The Court also found the City's definition of "injury" to be inconsistent with the PSEBA statute as it would also disqualify those who might otherwise meet the requirements of the PSEBA statute. In sum, the Illinois Supreme Court determined that the City's PSEBA ordinance was not a valid exercise of home rule authority because its definitions were inconsistent with the requirements of the Act and, therefore, preempted. 

Wednesday, January 19, 2022

Appellate Court Upholds Dismissal of Negligence Claims Against County

An Appellate Court upheld the dismissal of negligence claims against a county related to the issuance and operation of a special use permit for a commercial use adjacent to the plaintiffs property. Sutton v. Next Level Strategies.

In 2020, the Suttons (residential property owners) filed suit against the county and Next Level (a commercial business) adjacent to their property. The complaint consisted of 26 counts, two of which were directed at the county. Count 25 claimed that the county negligently granted a special use permit to Next Level and Count 26 alleged that the county negligently failed to enforce its ordinances against Next Level. The other counts were directed at Next Level.

The county filed a motion to dismiss Counts 25 and 26, arguing that Count 25 was barred by the 90 day zoning statute of limitation and that the Tort Immunity Act provided immunity to the County for both Counts 25 and 26. The court ruled in favor of the County and dismissed both of the counts filed against the County. The Suttons appealed.

The Appellate Court upheld the dismissal, finding that both Counts were properly dismissed under the Tort Immunity Act, which expressly provides the County with immunity from claims relating to the issuance of a permit and from claims that the County failed to enforce any law. 

Friday, January 14, 2022

Court of Appeals Declines to Issue Injunction to Churches Based on 2020 Executive Order

In early 2020, two religious institutions sued the Illinois Governor to challenge one of his Executive Orders that had restricted the number of persons who could attend in-person worship services to 10 people. The federal district court had denied the churches' request for a preliminary injunction to stop the Governor from enforcing the order, and the churches appealed. In June of 2020, the Court of Appeals ruled in the Governor's favor, finding that the challenged restriction did not violate the Free Exercise Clause of the First Amendment.

On remand back to the district court, the churches requested that the court issue a permanent injunction to stop enforcement of the restriction. The churches argued that subsequent decisions by the U.S. Supreme Court that came after the Court of Appeals' ruling were favorable to their argument that capacity limits on in-person worship violate constitutional rights. The district court denied the request, finding that the churches' challenge was "moot" because the Governor's EO had been subsequently amended to remove the capacity limits for places of worship. The churches appealed again to the Seventh Circuit Court of Appeals arguing that the federal court should rule on the legality of the previous restriction because the Governor might, in the future, impose a similar restriction. The churches asked the federal court to enjoin the Governor from reinstating the sort of capacity limit that was in force in spring of 2020.

In a ruling this week, the Seventh Circuit Court of Appeals agreed with the district court that injunctive relief was not appropriate in this instance. The Court of Appeals stated that federal courts should not assume that a state official will refuse to follow U.S. Supreme Court precedent, nor should a federal court grant injunctive relief based on predictions of what the Governor might do in the future. The Court of Appeals stated that if the State imposes an objectionable order in the future, the churches could file suit then, but concluded that "this suit is over." Elim Romanian Pentecostal Church et al., v. Pritzker (7th Cir. January 11, 2022).

Thursday, January 13, 2022

U.S. Supreme Court Imposes "Stay" On OSHA Vaccination Mandate But Upholds Vaccination Mandate for Health Care Workers

In two companion rulings today, the U.S. Supreme Court imposed a "stay" on the Federal OSHA Rule requiring employers with 100 or more employees to impose vaccination/testing requirements on employees in National Federation of Independent Business v. Department of Labor and upheld the HHS vaccination mandate for covered health care workers at providers that receive Medicare and Medicaid funding in Biden v. Missouri. In both rulings, the Supreme Court's decision turned on the Court's analysis of the statutory authority for these federal agencies to establish the mandates that were being challenged in these lawsuits.

In the NFIB v. Department of Labor ruling, the Supreme Court determined that the Department of Labor has the power to set workplace safety standards but not broad public health measures. In the majority's opinion, OSHA's vaccination mandate went beyond workplace safety and employee hazards to encompass public health measures, which the Court determined was outside OSHA's jurisdiction. As a result, the Court stayed enforcement of the OSHA mandate while the substantive challenge to the rule proceeds in the Court of Appeals. We should expect the Illinois Department of Labor to follow up with its own guidance regarding implementation of their new rule consistent with the Supreme Court's ruling since the Illinois rule simply adopted the federal ETS by reference.

In contrast, in the Biden v. Missouri ruling, the Court found sufficient authority and jurisdiction for HHS to require health care providers who receive federal funding to impose vaccination requirements on their health care workers. The Court referred to specific provisions in the law where Congress has authorized the HHS to promulgate, as a condition of a facility’s participation in the programs, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” The Court further stated that the vaccination mandate "fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the 'very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.'” 

There will likely be more detailed information about these two rulings to follow but we wanted to get the word out that these rulings came out today. 

Quorum Forum Ep 60 - Rules Learned and Applied During the Pandemic

Ancel Glink just released its 60th episode of its podcast, Quorum Forum - Quorum Forum 60: Rules Learned and Applied During the Pandemic

The COVID-19 pandemic is still a prominent part of our everyday lives, as the Delta and Omicron variants continue to impact our communities. In this episode, Ancel Glink shares some insight from the 2021 Illinois Library Association Conference on all things COVID, from remote meetings to vaccine mandates.

Call the Quorum Forum Hotline (312.601.9185) to tell us about your experience as an employer or employee during the pandemic, or email your questions to podcast@ancelglink.com.

Wednesday, January 12, 2022

Appellate Court Vacates TRO that Stopped Enforcement of State Agency Vaccination Policy

An Illinois Appellate Court recently vacated a temporary restraining order (TRO) that a trial court granted to prohibit a number of state agencies from enforcing a workplace policy requiring their employees to undergo vaccination or testing for COVID-19. Glass v. Illinois Department of Corrections.

In September, the Illinois Governor issued an Executive Order requiring employees at state-owned or operated congregate facilities (those operated by the VA, DHS, Department of Corrections, and Department of Juvenile Justice) to be vaccinated. A number of state employees in these agencies objected to the vaccination requirement and filed a lawsuit to challenge it. Their lawsuit claims that the state lacked legal authority to require vaccinations, that the mandate violates the Health Care Right of Conscience Act, 745 ILCS 70/1 et seq., and that the mandate is discriminatory and violates public policy. 

In November, the employees filed a motion for a Temporary Restraining Order (TRO) to stop enforcement of the mandate while their case proceeded. The state agencies argued that the Illinois Labor Relations Board had sole jurisdiction over the employees' claims and that the employees did not meet the TRO standards. The trial court granted a TRO to prohibit enforcement against some of the employees, and the state appealed that ruling to the Appellate Court.

The Appellate Court did not get into the substance of the challenge or the standards for a TRO, instead finding that the trial court did not have jurisdiction over the employees' challenge to the mandate as the ILRB has exclusive jurisdiction over claims of unfair labor practices. As a result, the TRO was vacated.

SAFE-T Act Undergoes More Changes Early in the New Year

Last January, the Illinois General Assembly passed the “SAFE-T” Act, a comprehensive criminal justice reform bill, with provisions addressing police training protocol, use-of-force techniques, and other related issues. In June 2021, the General Assembly amended the SAFE-T Act in a trailer bill. Recently, on January 7, 2022, Governor Pritzker signed Public Act 102-0694 into law, which further amends the SAFE-T Act. This second trailer bill (“Trailer Bill 2”) makes important changes to certain provisions of the Act that are scheduled to take effect in 2022.

Specifically, Trailer Bill 2 extends several new training deadlines for local law enforcement agencies from January 1, 2022 to July 1, 2022, which will give local police departments an opportunity to review the legislation with counsel and ensure compliance with the Act’s in-service training requirements. The new law also requires that while a probationary law enforcement officer is being trained, they must be supervised by a Board-certified law enforcement officer at all times.

The SAFE-T Act contains a provision that bans the destruction or alteration of body camera footage within the storage and review periods defined by the Act. Trailer Bill 2 further clarifies that a law enforcement agency may label the footage, provided that the labeling does not alter the actual recording of any incident captured on a body camera.

Trailer Bill 2 also clarifies that the records contained in the Officer Professional Conduct Database as required by Section 9.2 of the Illinois Police Training Act, are exempt from disclosure under FOIA except as otherwise provided in that Act.

Trailer Bill 2 contains additional important changes related to the detention of arrestees, officer certification review and revocation, and pretrial services. 

Post Authored by Erin Monforti & Eugene Bolotnikov, Ancel Glink

Tuesday, January 11, 2022

Illinois Department of Labor Adopts Federal OSHA Vaccination/Testing Rule

Last Friday, the Illinois Department of Labor adopted by reference the federal OSHA rule requiring vaccination or testing of employees by certain covered businesses (Emergency Temporary Standard or ETS), as follows:

The Department hereby adopts as a rule of the Department, through incorporation by reference, the amendments to 29 CFR 1910, 1915, 1917, 1918, 1926, and 1928 found in 86 FR 61402, published November 5, 2021, titled COVID-19 Vaccination and Testing; Emergency Temporary Standard. The effective date for this Standard shall be January 24, 2022, and the Standard shall expire on July 24, 2022.

Although the federal ETS only applies to private businesses (non-governmental), some states, including Illinois, have expanded OSHA rules to also apply to state and local governments. As a result, Illinois local governments with 100 or more employees (including municipalities, park districts, libraries, etc) should get ready to implement the new vaccine and testing requirement over the next few weeks. 

Note that although the new Illinois rule goes into effect on January 24, 2022, the Department has provided some time for covered employers to come into compliance. Deadlines for the adoption of vaccination policies and implementation of the various requirements of the new rule are posted on the Department's website (and reprinted below).

It is important to understand that even though the federal ETS has been challenged in multiple lawsuits and emergency stay requests, there is currently no legal restriction that would excuse implementation by covered employers. That could change as we wait to see how the U.S. Supreme Court decides the current challenges to the federal ETS that are in front of that Court. 

In sum, the federal ETS rule is now effective (as of January 10th) and requires covered private businesses (private businesses with 100 or more employees) to comply with the vaccination and testing requirements. The Illinois Department of Labor rule goes into effect on January 24th, and will expand the federal ETS to also require government employers with 100 or more employees to adopt vaccination policies and implement the new rule by February 24th.

Table of effective dates
Please see OSHA Standard 1910.501 for paragraph references.
RequirementFebruary 24, 2022March 25, 2022
Establish policy on vaccination (paragraph (d))X 
Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status (paragraph (e))X 
Provide support for employee vaccination (paragraph (f))X 
Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis (paragraph (h))X 
Remove any employee who received positive COVID-19 test or COVID-19 diagnosis (paragraph (h))X 
Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes (paragraph (i))X 
Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation (paragraph (j))X 
Report work-related COVID-19 fatalities to IL OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours (paragraph (k))X 
Make certain records available (paragraph (l))X
Ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer) (paragraph (g)) X

Monday, January 10, 2022

Court Rules in Public Body's Favor in FOIA Case

An Illinois Appellate Court recently ruled in favor of a public body in a FOIA challenge in Lyberger v. Cannon

In March 2020, a person submitted a FOIA request to a county board and county coroner seeking financial records regarding the county coroner’s office. Because of delays caused by the COVID-19 pandemic, the county board responded to the request in April 2020 by disclosing all responsive non-exempt records in its possession. The county coroner’s office reviewed the responsive records already provided by the county board to the requestor and confirmed that the coroner’s office did not possess any addition responsive records, so did not provide any additional records to the requestor. 

The requestor then filed a lawsuit alleging that the coroner’s office failed to respond to his request in violation of FOIA. The circuit court dismissed the case because the requestor was not entitled to a separate response from the coroner’s office when the requestor had already received the responsive records from the county. The Appellate Court agreed with the circuit court, finding that because the requestor’s FOIA request was already fulfilled, and an affidavit from the coroner’s office stated that the coroner’s office did not possess additional records, the requestor’s FOIA challenge was properly dismissed as moot.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, January 5, 2022

Summary of 2021 PAC Binding Opinions (FOIA)

 As noted yesterday, we are summarizing the PAC's binding opinions for 2021 this week. Today's post will summarize the FOIA binding opinions:

PAC Op. 21-001 (unduly burdensome)

In PAC Op. 21-001, the PAC concluded that a police department violated FOIA by improperly denying a FOIA request as unduly burdensome under Section 3(g) and improperly denying responsive grand jury subpoenas under FOIA Section 7(1)(a). Specifically, the PAC found that CPD did not first offer the requester an opportunity to "meet and confer" so the requester could narrow the scope of the burdensome request to manageable proportions. Instead of conferring with the requestor before denying the request, CPD’s written response to the requestor omitted any mention of an opportunity to confer and invited the requestor to submit a new request. The PAC also found that CPD improperly denied the responsive grand jury subpoenas under FOIA exemption 7(1)(a), which exempts information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law. While CPD claimed the responsive subpoenas were exempt under the Code of Criminal Procedure of 1963, the PAC clarified that the Code only prohibits a State’s Attorney, not police departments, from disclosing matters occurring before a grand jury in Illinois, and the Code does not encompass federal grand jury subpoenas. 

PAC Op. 21-002 (juvenile records)

In PAC Op. 21-002, the PAC ruled in favor of a police department that had denied a request for records pertaining to allegations of child sex abuse, finding that the department properly withheld the requested records under FOIA section 7(1)(a), which exempts from disclosure information specifically prohibited from disclosure by state law, because information identifying children who are victims or alleged victims of criminal sex offenses is confidential and prohibited from disclosure by section 3 of the Privacy of Child Victims of Criminal Sexual Offenses Act. The PAC also concluded that the Department properly withheld the requested records in their entirety under FOIA section 7(1)(c), which permits withholding information that would constitute a clearly unwarranted invasion of personal privacy if disclosed. The PAC cited the significant personal privacy interests of both the alleged victim, who was a minor at the time of the alleged offense, and the suspect, who was not arrested or charged with a crime, outweigh the relatively weak public interest in disclosure. 

PAC Op. 21-004 (third party communications)

In PAC Op. 21-004, the PAC found a municipality in violation of FOIA after it denied a FOIA request for communications between the city and an applicant for a zoning change. The city had denied the request arguing that the communications were part of the city's "deliberative process" on the zoning application and were exempt under 7(1)(f) of FOIA. The PAC determined that the deliberative process exemption is limited to internal documents and does not cover records or communications shared with third parties. Because the requested record were exchanged between the city and a third party (the zoning applicant), they did not fall within the type of "inter- and intra-agency predecisional or deliberative material" that would be covered by the section 7(1)(f) exemption and, as a result, the PAC said they should have been released to the FOIA requester.

PAC Op. 21-005 (employee attendance records)

In PAC Op. 21-005, a requester filed a request seeking records showing the name, star numbers, dates, and type of time off for police officers and employees who requested time off between January 1, 2021 and January 8, 2021 and January 1, 2020 and January 8, 2020. The police department provided a record, but had redacted all of the substantive data. The department cited to 7(1)(d)(iv), claiming that release of this information could endanger the life or physical safety of law enforcement personnel and 7(1)(v), that the information constituted security measures that could jeopardize the safety of personnel if disclosed. The PAC found that neither of the cited exemptions justified redaction of the data that was requested. First, the PAC stated that a basic employee attendance record is not the type of sensitive record that could potentially jeopardize the life or physical safety of police officers or employees. Second, the PAC stated that employee attendance records did not fall within the 7(1)(v) exemption that protects vulnerability assessments, security measures, and response policies. The PAC then directed the police department to release the requested attendance records.

PAC Op. 21-007 (release of names)

In PAC Opinion 21-007, the PAC concluded that a city clerk violated FOIA when it improperly redacted the names of persons contained in the parking letters of exception. First, the PAC noted that names are generally not exempt under FOIA section 7(1)(b) (the private information exception) because names are basic (rather than unique) identifiers. Second, the PAC concluded that the city clerk failed to demonstrate that disclosing the names of people who had been issued parking exceptions would constitute a clearly unwarranted invasion of personal privacy, or that the privacy interests in the names was substantial enough to outweigh the public’s interest in disclosure. As a result, the PAC concluded that the names of residents who had been granted parking exceptions were not exempt under FOIA section 7(1)(c).

PAC Op. 21-008 (timely response to FOIA request) 

Earlier this year, a reporter submitted a FOIA request to the Office of the Mayor of the City of Chicago seeking text messages sent or received by the Mayor regarding conversations between the Mayor and certain hospital personnel on their personal or city-issued devices. Although the Mayor’s Office properly extended the time to respond to the FOIA request by an additional five business days, the Mayor’s Office failed to either comply with the request or deny the request in writing within the extended response period. In PAC Op. 21-008, the PAC concluded that the Mayor Office violated FOIA section 3(d), which requires public bodies to either comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request.

PAC Op. 21-010 (employee misconduct records)

In PAC Op. 21-010, the PAC determined that a public body violated FOIA by redacting the names of its employees who were alleged or found to have engaged in misconduct. Specifically, the PAC rejected the city's argument that the names of these city employees were exempt from disclosure under section 7(1)(b), because a person’s name is a basic identifier, rather than a unique identifier, and disclosing these employee names would not reveal any “private information." Also, the PAC determined that the records relate to the public duties of public employees are do not, therefore, constitute a clearly unwarranted invasion of personal privacy under section 7(1)(c) of FOIA. Finally, because the records merely documented complaints and investigations of complaints against city employees and were informally resolved and not part of a hearing, proceeding, or other formal agency proceeding that would constitute an “adjudication," the PAC concluded that the city failed to demonstrate that the redacted names of the city employees were exempt under FOIA exemption 7(1)(n). 

PAC Op. 21-012 (911 call response data and FOIA)

In PAC Op. 21-012, the PAC found a public body in violation of FOIA when it withheld 911 call response time data, rejecting the public body's use of the FOIA exemption that protects records that would endanger the life or physical safety of law enforcement personnel or any other person and the exemption that protects from release policies and plans designed to protect against potential attacks on community systems and facilities. 

Tuesday, January 4, 2022

Summary of 2021 PAC Binding Opinions (OMA)

In 2021, the Illinois Attorney General's Public Access Counselor issued 12 binding opinions, all of which are now published on the Attorney General's website (earlier last year, the website was only partially functioning). Today, we will focus on the OMA binding opinions of 2021.

PAC Op. 21-003 (probable litigation exception for closed session)

In PAC Op. 21-003, the PAC found a public body in violation of the OMA when it went into closed session under the "probable litigation" exception. A resident filed a complaint with the PAC arguing that a City Council improperly went into closed session under this exception. In his complaint to the PAC, the resident noted that the City Council had informed him that the Council would be discussing a City sewer main located on the resident's property and which the resident claimed was not within a proper easement. The resident argued the closed session discussion was improper because there was no litigation threatened or pending to justify the closed session. The City argued that it believed litigation was imminent after the resident stated he was going to retain an attorney. The PAC found that this was not sufficient to justify going into closed session to discuss the sewer dispute. The PAC also found that the 2(c)(11) exception does not authorize closed session discussion of an underlying decision or course of action merely because it could potentially give rise to litigation at some point in the future. 

PAC Op. 21-006 (recordation of closed session) 

In PAC Op. 21-006, the PAC found a public body in violation of the OMA for failing to record its closed session. According to the PAC's opinion, the district employee who usually took the minutes and kept the recordings for district meetings was not asked to attend this particular closed session, which included committee members and the district's legal counsel. Following the meeting, the employee filed a request for review with the PAC alleging that she believed the committee failed to record its closed session and claiming that the committee discussed topics outside the scope of closed session. In the district's response to the request for review, the district stated it had forgotten to turn on the recorder and would put practices in place to ensure compliance at future meetings. The PAC found the district in violation for failing to record the closed session but did not address the allegation that the discussions in closed session were outside the scope of permitted exceptions, finding that allegation speculative.

PAC Op. 21-009 (public comment in open session)

In PAC Op. 21-009, the PAC found a school board in violation of the OMA because it required members of the public to provide comments in closed session, and did not provide an opportunity for public comment in open session. A school board conducted a meeting where the only agenda topic was a closed session to consider a personnel matter. A significant number of members of the public attended the meeting and 10 people signed up to speak at the meeting. The board went into closed session shortly after opening the meeting, and the members of the public who signed up to speak were called into closed session one-by-one to provide their comments to the school board. The board did not allow comment in open session. The PAC found that the board violated the OMA by failing to allow the public to address the board in open session, and ordered the school board to provide an opportunity for public comment in open session at all future meetings.

PAC Op. 21-011 (remote meetings)

In PAC Op. 21-011, the PAC found no OMA violation where a public body conducted its meeting remotely via Zoom. The PAC rejected the complainant's argument that the board's justification for holding a remote meeting was a pretext to avoid members of the public attending the meeting and found the board complied with the OMA requirements for conducting a remote meeting during a health disaster. The PAC also noted that the board allowed public attendance and comment at the remote meeting through the Zoom platform and that the complainant had attended and spoke at the meeting. This opinion provides helpful guidance to public bodies in complying with section 7(e) of OMA that authorizes remote meetings while the Governor's COVID-19 disaster proclamation is in effect.

Monday, January 3, 2022

Vaccination Order at Restaurants, Gyms, and Entertainment Venues in Cook County

Happy New Year Municipal Minute readers!  Welcome to 2022.

As many of you have heard, Cook County (as well as Chicago and a few suburban municipalities) recently adopted new vaccination mandates for patrons at restaurants, fitness facilities and gyms, and entertainment venues that become effective in 2022. Cook County Department of Public Health's Mitigation Order No. 2021-11 takes effect today. In short, persons who consume food or beverages on-site at restaurants or bars (iclyding private clubs, country clubs, banquet halls, etc.) or who visit gyms and fitness facilities, or entertainment venues (movie theaters, theaters, arenas, skating rinks, bowling alleys, etc.) in Cook County must now show proof of vaccination and ID to the business or venue prior to entering. Proof of vaccination means a CDC vaccination card, an official immunization record from the jurisidiction where the vaccination was administered, an "app" that provides a digital record of vaccinations, or a digital or physical photo of the vaccination card. An individual is considered fully vaccinated under the Cook County orderr 2 weeks after receiving the second dose in a 2-dose series or 2 weeks after a single dose in a single dose series.

Late on New Years Eve, Cook County issued a press release updating its mandate to address concerns that had been raised with regard to youth athletics and recreation. The vaccination mandate now exempts the following:

  • persons 18 years of age or younger who are participating in an activity sponsored by a school, park district, child care, or after-school program
  • anyone participating in special recreation programs
  • spectators of indoor sporting events provided no food or drink is served and patrons remain masked at all times
The vaccination order also exempts a number of activities and venues, including food pick-up, those with medical exemptions, certain non-resident performing artists and athletes, houses of worship, schools, residential or office locations where the use is limited to residents, owners, or tenants, and charitable food service establishments. 

The vaccination order and Cook County's update on 12/31 both make it clear that masking is still required even with proof of vaccination.