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Tuesday, February 1, 2022

PAC Finds in Favor of Public Body in Appeal Involving Attorney-Client Privilege FOIA Exemption

In its first binding opinion of 2022, the PAC issued a binding opinion finding in favor of a public body in a FOIA appeal involving the attorney-client privilege exception of FOIA.

In October 2021, a reporter submitted a FOIA request to a County State’s Attorney’s Office (SAO) seeking reports prepared by a State’s Attorney to County Board members regarding the use of county funds for certain purposes. The SAO denied the FOIA request pursuant to FOIA exemption 7(1)(m), because the responsive records contained exempt confidential attorney-client privileged communications and work product documents. The journalist appealed the denial to the Illinois Attorney General's PAC Office, claiming that the SAO improperly withheld the records because the State's Attorney was not acting as a legal advisor in connection with the records, but was instead providing non-legal public relations advice.

In PAC Op. 22-001, the PAC found that the SAO did not violate FOIA when it denied the FOIA request pursuant to FOIA exemption 7(1)(m). The PAC first acknowledged that the attorney-client privilege does not apply when an attorney engages in communications that seek or convey business or other non-legal advice to a client. However, in this case, the PAC determined that the responsive records were prepared by a State's Attorney in her capacity as the County Board's attorney and were for the primary purpose of providing legal guidance to County Board members on a specific issue. Because the records reflected the substance of the State's Attorney's opinions and her confidential legal advice concerning the underlying matter, the PAC concluded that the records fell within the scope of FOIA’s exemption for confidential attorney-client communications and were properly withheld.

Additionally, the PAC found no indication that the SAO or the County Board shared records with outside parties or otherwise waived the attorney-client privilege. The PAC further determined that even if the contents of the responsive records had influenced statements to the public or the media, the records would still be protected by the attorney-client privilege because their primary purpose was to provide legal advice.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink


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