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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. 


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