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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, December 29, 2022

Court Rejects Attorneys Fees Where Public Body Disclosed Records in Litigation

In August 2020, an inmate submitted a FOIA request to a municipality seeking numerous records. In response, the City disclosed certain records, and withheld others asserting several FOIA exemptions, including FOIA exemption 7(1)(e-10), which exempts the following:

Law enforcement records of other persons requested by a person committed to the Department of Corrections, Department of Human   Services Division of Mental Health, or a county jail, including, but not limited to, arrest and booking records, mug shots, and crime scene photographs, except as these records may be relevant to the requester's current or potential case or claim. 

After the inmate sued the City alleging that it improperly denied the FOIA request, the City voluntarily provided the inmate with some of the requested records during the pendency of the lawsuit, but continued withholding certain records allegedly exempt pursuant to FOIA exemption 7(1)(e-10). 

Although the trial court agreed that the City properly withheld some of the requested records using exemption 7(1)(e-10), the court awarded attorney fees to the inmate, finding that the inmate “prevailed” within the meaning of FOIA section 11(i) because the City voluntarily disclosed certain records to the inmate during the lawsuit. 

On appeal, the Fourth District Appellate Court in Donley v. City of Springfield reversed the trial court, holding that the inmate was not entitled to attorney fees in this case. Although the Appellate Court had previously acknowledged that a FOIA litigant can “prevail” without a court order if a public body voluntarily discloses documents mid-litigation, the Court did not find that the inmate prevailed in this case because the documents disclosed to the inmate mid-litigation were properly classified as exempt and withheld by the City at the time the City received the FOIA request. Only after the inmate filed their lawsuit was the City on notice that the cited FOIA exemption did not apply because the withheld records only then became relevant to the requestor’s current or potential case or claim against the City. 

The Appellate Court concluded that “prevailing” under FOIA requires more than just (1) the filing of a lawsuit against the public body and (2) the public body disclosing the records. Instead, prevail also requires that the lawsuit (1) caused the disclosure of the records and (2) was reasonably necessary to obtain the requested records. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, December 28, 2022

Court Upholds Pension Board Award of Line-of-Duty Disability Pension

In a recent opinion, an Illinois Appellate Court upheld the decision of a local pension board awarding a firefighter a line-of-duty disability pension under Section 4-110 of the Illinois Pension Code.

In 2015, a fire captain was assigned to attend a set of training exercises that included intensive physical components (including fighting live fires, climbing stairs, and other exercises while in full firefighting equipment). The captain had a history of heart problems, including an electrical defect and cardiomyopathy. Over the course of the few days of training exercises, the captain became physically weak and started experiencing flu-like symptoms including a fever, an irregular pulse, and difficulty breathing. He was diagnosed with pneumonia, and his treating cardiologist found that his cardiomyopathy had worsened, negatively impacting the rate at which blood was being pumped from his heart to the rest of his body. The captain ended his active firefighter duty the following month and went through a series of medical treatments to address his heart condition.

In mid-2017, the captain submitted an application to the local pension board (Pension Board) seeking either a line-of-duty pension or an occupational disease disability pension. The Pension Board awarded him “interim” nonduty disability benefits, with the determination of his line-of-duty disability pension application pending a full hearing. At the pension hearing, the Pension Board heard from several medical witnesses, none of whom could conclusively testify that the training exercises the captain attended in 2015 had caused his worsened heart condition. However, none of the doctors could rule out the training as contributing to the captain’s health issues either. There was no real dispute, however, as to the finding that the captain was no longer able to work as a firefighter. After considering the evidence presented at the hearing, the Pension Board awarded the captain a line-of-duty disability pension, and the trial court upheld the Pension Board's decision after it was challenged by the municipality.

On appeal, the municipality argued that (1) the award of interim nonduty disability benefits before the captain’s full hearing terminated the Pension Board’s authority to award the captain a line-of-duty pension; (2) the Pension Board’s decision was contrary to the medical evidence provided at the hearing; and (3) the Pension Board did not apply the proper burden of proof in making its determination. 

The Appellate Court disagreed with the municipality and upheld the Pension Board’s award of the disability pension to the captain. First, the Appellate Court found that the interim award of pension benefits was not a “final action” and was awarded in anticipation of a full hearing, which is not an uncommon practice in Illinois pension disputes and did not strip the Board of its authority to award the captain’s full pension benefits. Second, the Court rejected the municipality’s argument that the Pension Board’s decision was contrary to the evidence presented at the hearing. Finally, the Court determined it would not reverse the pension award on the grounds that the Board allegedly misapplied the “preponderance of the evidence” standard of proof.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Tuesday, December 27, 2022

PAC Issues 13th and 14th Binding Opinions on FOIA Challenges

The PAC issued its 13th and 14th binding opinions of 2022, both dealing with FOIA challenges and summarized below:

PAC Op. 22-013

In October 2021, a city department (Department) received a FOIA request asking for certain communications. The Department provided some of the requested records, but withheld a letter from a private attorney, arguing that the communication constituted settlement negotiations that were confidential under both federal and state rules of evidence. The requester appealed and the PAC issued an advisory determination that the Department improperly withheld the letter. The requestor submitted a second FOIA request to the Department in August 2022 seeking “copies of all records the Attorney General's Office found to be inappropriate in 2022 PAC 72362." After the Department again denied the request, requestor appealed the second denial to the PAC.

In PAC Op. 22-013 (a binding opinion), the PAC determined that the Department failed to demonstrate that the letter was exempt from disclosure under the cited FOIA exemptions 7(1)(a) and 7(1)(f) and ordered release of the letter. 

First, the PAC determined that the state and federal evidentiary rules cited by the Department (which concern the admissibility and consideration of settlement negotiations in the context of judicial proceedings) do not prohibit the disclosure of these records under FOIA. The PAC took the position that evidentiary rules have no relevance to whether a record must be disclosed to the public under FOIA.

Second, the PAC rejected the Department's reliance on the "deliberative process" exemption in 7(1)(f), finding that the Department failed to demonstrate that the letter at issue was either an inter-agency or intra-agency communication that revealed the Department's pre-decisional deliberative process concerning a potential settlement. 

PAC Op. 22-014

In PAC Op. 22-014, the PAC found a public body in violation of FOIA for failing to timely respond to a FOIA request. Nothing new for public bodies to learn from this opinion.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Friday, December 23, 2022

Minor Child Not Eligible for Survivor Spouse Benefits Under Pension Code

In a recent challenge to a Pension Board ruling, the Illinois Appellate Court ruled in favor of a municipality, finding that a minor child was not eligible to apply for the 100% act of duty benefit under section 3-112(e) of the Illinois Pension Code because he is not a surviving spouse. Masterton v. Village of Glenview.

After a police officer died while attending roll call, the officer's former spouse filed an application with the local pension board (Pension Board) for survivor pension benefits for the officer's son. She sought an award of duty death survivor benefits in the amount of 100% of the officer's former salary. The Pension Board initially dismissed the application for 100% benefits, finding that the child was not eligible to apply for a 100% act of duty benefit because he was not a surviving spouse under the applicable Pension Code provision, but awarded a 50% minor child's survivor benefit. The former spouse appealed to the circuit court, which reversed the Pension Board's decision and remanded it back to the Pension Board to conduct further proceedings on the application for 100% benefits. On remand, the Pension Board ruled that the officer's death was not the result of the performance of an act of duty and concluded that the child was only entitled to a 50% pension award. The circuit court upheld the Pension Board's decision and the decision was appealed to the Appellate Court.

The Appellate Court held that the officer's minor son did not qualify for act of duty survivor benefits under section 3-112(e) of the Pension Code because he is not a surviving spouse. Since the Appellate Court determined that the minor child was not eligible to apply for survivor benefits under section 3-112(e), the Court did not address the former spouse's argument that the officer's participation in roll call constituted an act of duty under the Pension Code.

Thursday, December 22, 2022

Upcoming Webcast on Government Incentives for Mixed-Use Developments

The real estate law section of the Illinois State Bar Association (ISBA) is presenting a webcast on January 13, 2023, to discuss the topic "State and Local Government Incentives for Rebuilding Mixed-Use Residential/Commercial Projects." The speakers include Ancel Glink partner and Municipal Minute creator Julie Tappendorf. 

You can learn more about the program and register to attend the webcast here.

State and Local Government Incentives for Rebuilding Mixed-Use Residential/Commercial Projects

Friday, January 13, 2023, 11:00 am to 12:30 pm (Central)

1.5 hours of CLE credit

Wednesday, December 21, 2022

Court Upholds Local Pension Board Decision Denying Surviving Spouse Benefits

Recently, an Illinois Apellate Court upheld the decision of a local pension board to deny surviving spouse benefits to the wife of a police officer whose death was found to be caused by his preexisting heart condition rather than the result of engaging in “an act of duty”. Vargas v. The Town of Cicero Police Pension Fund, et al.

A police officer collapsed suddenly while walking into his station for roll call, and was later pronounced dead. The officer had a history of high blood pressure, persistent chest pain, and elevated cholesterol, and his cause of death was determined by the medical examiner to be “coronary arteriosclerosis,” or the buildup of plaque in his arteries surround his heart. The officer’s wife filed a claim for federal benefits, which was granted, as well as a surviving spouse pension under the Illinois Pension Code. Citing the activities her husband had engaged in at work the day prior to his death (including a short foot chase of a suspect), the officer's wife argued her husband's death was aggravated by his on-duty activities and that she was entitled to a state pension.

After a hearing before the municipality’s police pension board (Board), the officer's wife was denied surviving spouse pension benefits because her husband’s death was found not to have resulted from “the performance of an act of duty” under the Pension Code. This finding was based on a collection of expert medical opinions which generally concluded that the officer’s death was a result of “uncontrolled cardiac risk factors.” While his wife presented contrary medical opinions, the Board determined she failed to prove that some act of duty actually aggravated or caused his death. She then appealed the pension board’s decision, but the lower court upheld the denial of pension benefits.

The Appellate Court reviewed the Board’s decision and found that its factual findings were not against “the manifest weight of the evidence,” meaning that the officer's wife could not show that the Board had clearly made an error in denying her a pension. Because this standard is highly deferential, and because the Board in this case had carefully weighed the medical evidence and other facts surrounding the officer’s death, the Appellate Court upheld the Board's denial of surviving spouse pension benefits.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Tuesday, December 20, 2022

Wisconsin Court Finds University Social Media to be Nonpublic Forum

We wrote last week about an Illinois federal district court case involving government use of social media. In that case, the district court allowed a First Amendment challenge against a city alderman to proceed, finding that the interactive space on the alderman's social media page was a public forum and his deleting and blocking activities may have violated users free speech rights. In that case, the court acknowledged that the Seventh Circuit Court of Appeals (the federal appeals court covering Illinois as well as certain other nearby states) had not yet weighed in on whether government social media was a public forum but found cases decided by other courts of appeal that hadd made that determination to be persuasive.

In today's post, we write about a Wisconsin federal district court case also involving government social media activities. Krasno v. Mnookin. This case involves a First Amendment challenge to social media actions by the University of Wisconsin-Madison. The University operates Facebook and Instagram pages where it communicates with students, faculty, and the general public. The University  moderates its social media accounts in several ways, including hiding or deleting comments that the University deems "off-topic" and employing a "keyword filter" that hides comments that include words or phrases that the University includes in the filter. The University also turns off comments on certain posts to prevent users from commenting.

A former student who had worked in the primate testing center of the University frequently commented on University posts to express her views opposing animal testing. The University hid or deleted some of her posts and left others. The University had also imposed an account restriction on the former student's Instagram account meaning that her posts on the University's page would be automatically hidden unless the University "unhid" them. Many of her posts were hidden through the keyword filter because they included filtered words such as "lab," "animal testing," "kill animals," and dozens of other words and phrases that were included in the filter. 

In 2021, the former student sued the Univerrsity, claiming that the University's restrictions on her Instagram Account and deleting her posts from Facebook constituted unlawful censorship in violation of her First Amendment rights. She also claimed that the University's use of the "keyword filter" was "viewpoint discrimination" in violation of her free speech rights. 

While the Wisconsin federal court acknowledged that a number of courts had determined that the interactive area of a government social media site was a designated public forum, the court distinguished these cases and held that the University operated a "nonpublic forum" on its social media pages because it had, by policy or practice, restricted comments on its pages to "on topic" discussions only. The court determined that the University's ban on "off topic" comments was a reasonable and viewpoint neutral rule that furthered the University's interest in preserving the interactive comment threads to University-related topics. The court also found that users have alternative ways to express their views. In sum, the court rejected the former student's First Amendment challenge on all grounds.

While this is an interesting case, and certainly favorable to governments who might benefit from adopting a similar "off topic" rule for their own social media sites, it is important to note that this case appears to be an outlier - the Wisconsin court even acknowledges that there are a number of cases that have held that government social media is a designated public forum. This ruling has also been appealed so it will be interesting to see what the Seventh Circuit Court of Appeals does since that court of appeals has yet to weigh in on government social media in the context of a First Amendment challenge. We will keep you posted as this appeal moves forward but governments might want to take a cautious approach in relying on this particular ruling, at least until it goes through the court of appeals. 

Monday, December 19, 2022

911 Calls Not Automatically Exempt But Public Body Not Required to Create Transcript of 911 Call for FOIA

In August 2019, the Edgar County Watchdogs (ECW) filed two separate FOIA requests with a County Sheriff’s Office seeking 911 call records and other records regarding the Office's  response to several incidents at a local park. The Sheriff's Office denied the 911 records, based on FOIA exemption 7(1)(d)(iv) that the recordings contained confidential statements made by individuals filing complaints with or providing information to law enforcement. ECW then sued the Sherriff’s Office alleging it had improperly and willfully and intentionally denied ECW's FOIA requests and failed to conduct an adequate search.

After the circuit court conducted an "in camera" inspection of the recordings, the court concluded that the "tonal qualities" of the victim statements in the 911 recordings were exempt because disclosure would unavoidably reveal victim identities. However, the court ordered the Sheriff’s Office to provide ECW with unredacted versions of the victim statements contained in the written police reports corresponding to the 911 calls and to provide ECW with either a "masked" version of the calls or a transcript of the calls. 

On appeal, the Sherriff’s Office argued that the circuit court erred when it found that the 911 recordings were not exempt, claiming that (1) 911 recordings (in any form) should be exempt from disclosure because the content of the call reveals the caller’s identity or alternatively (2) that masking the audio or creating a transcript of the recording constitutes the creation of a new record, which the Sherriff’s Office is not required to do under FOIA. 

In Edgar County Watchdogs v. Will County Sherriff’s Office, the Appellate Court rejected the Sherriff’s Office argument that all 911 recordings should be automatically exempt. Instead, the Appellate Court held that only those portions of calls that would unavoidably disclose the identity of the person who filed the complaint or provided the information to law enforcement would be exempt under FOIA exemption 7(1)(d)(iv).

The Appellate Court also rejected the Sherriff’s Office argument that providing ECW with an altered recording that would disguise the caller’s voice required them to create a new record. The Court determined that using computer software to mask caller voices in the responsive 911 recordings is similar to deleting exempt information from a record or scrambling a record, neither of which constitute the creation of a new record. However, the Appellate Court agreed with the Sheriff's Office that it should not be required to prepare and produce a transcript of the calls, since that would require the Sheriff's Office to create a new record that was not already maintained by that office.

The opinion contains two separate opinions concurring in part and dissenting in part from the majority opinion that are interesting to read. One of these opinions would require the Sheriff's Office to provide a transcript and the other opinion would find that the calls were exempt from FOIA.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Friday, December 16, 2022

Public Body Did Not Violate FOIA Where Request Went to Wrong Public Body

We have seen a lot of FOIA cases coming out of the Illinois Appellate Courts that we will be reporting on over the next few weeks. In today's post, an Illinois Appellate Court upheld the dismissal of a lawsuit filed by an inmate challenging the denial of his FOIA request, finding that the inmate filed his request with the wrong public body. Foote v. Winnebago County Sheriff.

The inmate had filed a FOIA request with the Winnebago County Sheriff's Office seeking copies of various contracts between Winnebago County and prison venders, as well as records pertaining to the provision of medical services to inmates. Foote filed suit after he failed to receive a response from the Sheriff's Office. The circuit court dismissed his lawsuit, finding that he had filed his request with the wrong public body and, therefore, the Sheriff's Office did not violate FOIA.

On appeal, the Appellate Court first noted that since FOIA does not require a public body to compile records it does not ordinarily keep, the failure of that public body to turn over documents that are not in existence or not under its control does not constitute a violation of FOIA. The Appellate Court upheld the circuit court's ruling that it could take judicial notice of which records a public body would ordinarily keep or have in its possession. The Court also noted that the inmate knew or should have know that the records it requested would be held by Winnebago County or the Illinois College of Medicine, and not the Sheriff's Office. Finally, the Appellate Court rejected the inmate's request for civil penalties, finding that he did not prevail in his FOIA lawsuit and the Sheriff's Office did not willfully or intentionally refuse to comply with FOIA.

This is an interesting case for a few reasons. 

First, the Appellate Court held in this case that a public body did not have to respond to a FOIA request where the records being requested were not records kept or possessed by the public body. Best practices (both for record-keeping purposes and in case of a challenge) would be for a public body to respond to all FOIA requests, even if the response simply states that the public body has "no responsive public records." The Appellate Court even acknowledged that best practice in its opinion, as follows:

Although it would behoove the Sheriff’s Office to nonetheless respond to such requests with a simple “we do not keep those records,” based on Foote’s amended complaint, in the light most favorable to Foote, he failed to plead a cause of action for which relief could be granted.

Second, the Court appeared to find that Winnebago County and the Winnebago County Sheriff's Office were two distinct public bodies for purposes of FOIA. 

Third, the circuit court had dismissed the individual employees of the Sheriff's Office who had been named as defendants in Foote's lawsuit, holding that FOIA does not provide a statutory basis for suing individuals in FOIA challenges (this issue was not appealed).

Thursday, December 15, 2022

District Court Allows First Amendment Social Media Challenge Against Alderman to Proceed

Earlier this year, a federal district court denied a motion to dismiss a First Amendment lawsuit challenging actions by a City Alderman to block certain comments from his Facebook page, allowing the case to proceed. Czosnyka v. Gardiner

Six residents of Chicago's 45th Ward brought a First Amendment lawsuit against their Alderman after they claim their comments were deleted from the alderman's Facebook page. They alleged that the Alderman's actions violated their First Amendment right to free speech. The Alderman filed a motion to dismiss, arguing that the residents did not sufficiently allege that his Facebook page was a public forum. The district court acknowledged that the Seventh Circuit Court of Appeals had not yet addressed the issue of whether a government official's social media page was a public forum, but noted that other Courts of Appeals had issues opinions stating that when a government official uses a social media account for official business, the interactive portion of that platform is a public forum for First Amendment purposes. See Davison v. Randall (4th Circuit) and Knight First Amendment Inst. v. Trump (2nd Circuit). 

Applying the analysis in these two cases, as well as the U.S. Supreme Court's decision in Packingham v. North Carolina, the district court determined that the residents had at least plausibly alleged that the Alderman had restricted their access to a public forum when he barred them from posting or deleted their comments from his Facebook page. As a result, the district court allowed the residents' lawsuit to move forward, and the case is still pending in the district court.

Wednesday, December 14, 2022

City Immune From Tort Liability in Zoning Case

In Xochi, LLC v. City of Galena, the Illinois Appellate Court found the City immune from liability under the Tort Immunity Act for claims relating to a zoning approval relating to a cannabis dispensary and upheld the dismissal of the case against the City.

Xochi owned a building in the City of Galena which it agreed to lease to Veriflife, who intended to operate a cannabis dispensary. Verilife asked the City to complete a zoning form to certify that local zoning would allow a cannabis dispensary at the location, as required by the State of Illinois as part of Verilife's state licensing application. Prior to Verilife's request of the City relating to the zoning form, the City had granted zonign relief for a competitor dispensary operator (Fotis), to operate a cannabis dispensary at a location less than 1500 feet from the Xochi building. The City stated that it did not sign the zoning form for the Verilife's facility because its facility would be within 1500 feet of the Fotis facility, which was prohibited by state and local laws. After the City refused to complete the form, Verilife terminated the lease. Xochi then filed suit against the City, claiming the City was negligent in not completing the form, thus depriving Xochi of the financial benefits of the lease with Verilife. The City filed a motion to dismiss, arguing that it was immune from liability under the Tort Immunity Act. The trial court ruled in the City's favor and Xochi appealed.

The Appellate Court did not get into the merits of Xochi's claims against the City, instead agreeing with the circuit court that Section 2-104 of the Tort Immunity Act precluded the City from liability. That Section provides as follows:

A local public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization where the entity or its employee is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.

The Court found that the plain reading of this Section of the Tort Immunity Act applied because the City's refusal to sign the zoning form for Verilife was a public entity's "failure or refusal" to provide its "approval...or similar authorization." As a result, the City was immune from Xochi's tort claims and the case was properly dismissed.


Tuesday, December 13, 2022

Illinois General Assembly Likely to Weigh in on Gun Safety in Lame-Duck Session

The Illinois General Assembly’s fall veto session recently ended, with state law makers adopting changes to the SAFE -T Act, among other legislative acts.

Looking ahead to the General Assembly’s lame duck session in early January, it is likely that an omnibus firearms bill will be considered by the state legislature in the New Year. HB 5855 has been proposed to amend several state statutes related to gun possession and firearm trafficking. The most publicly reported provision of the bill would amend the Illinois Criminal Code to make it unlawful to manufacture, deliver, sell, or purchase an assault weapon, assault weapon attachments, or other certain firearm accessories in Illinois. The law contains several exemptions, including the possession of these weapons by on-duty law enforcement officers or on-duty members of the armed forces, as well as the use of such firearms in hunting activities authorized by the Wildlife Code.

HB 5855 is in its infancy―we will keep readers up to date as it is considered and potentially progresses through the General Assembly.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Monday, December 12, 2022

SAFE-T Act Amendments Signed into Law

The Safety, Accountability, Fairness, and Equity - Today Act, or the SAFE-T Act, is a comprehensive criminal justice reform that took effect on July 1, 2021. In the recent veto session, the Illinois General Assembly passed HB 1095 amending the SAFE-T Act, and that bill was signed into law by Governor Pritzker as PA 102-1104. 

The new Act clarifies various provisions of the SAFE-T Act and implements certain changes that impact municipalities. The bill is over 300 pages, so we have not included a complete summary of the changes, but we have summarized a few of the changes that may be of interest to our municipal clients below:

  • P.A. 102-1104 extends the deadline for implementing officer-worn body cameras to July 1, 2023 for municipalities with a population of more than 100,000 but less than 500,000, so long as the municipality has have ordered or purchased officer-worn body cameras by October 1, 2022. 
  • PA 102-1104 allows the Law Enforcement Camera Grant Fund to offset the cost of data storage for the body cameras. 
  • PA 102-1104 eliminated language from the SAFE-T Act that required body camera recordings used for the prosecution of conservation offenses, criminal offenses, traffic offenses, or municipal ordinance violations from having to record the offense and date the offender was charged, as well as the time, date, location, and precinct of the incident.
Other changes include an expansion of the list of crimes for which a judge can order pretrial detention, a supplement to the issues a judge can consider when determining if a defendant is a risk of willful flight from prosecution, and standardization of language regarding a defendant’s danger to the public safety.

Post Authored by Katie Nagy & Julie Tappendorf

Thursday, December 8, 2022

City Ordered to Reinstate Police Officer Terminated for Social Media Posts

In 2018, a city received a complaint from a local pastor about a city police officer's posting on social media of a photo of himself on social media wearing a t-shirt with the word "POLICE" and the letters "BDRT" and "Baby Daddy Removal Team" and certain posts that the pastor found derogatory to the African-American community. The posts included the officer's discussion with another individual about crimes in the south end of Peoria, including the following excerpts:

Other individual:  “This is one of the reasons we are rated 2nd in the nation as worst place for African Americans to live. Instead of investing and providing opportunity, we abandon low income areas. This will make things worse, not better. It’s really a slap in the face to those in the community.” 

            *    *     * 

Police officer: “Those in those communities need to stop killing each other, stop stealing from everyone who are trying to help them and stop using and selling drugs. They have no family base thanks to Planned Parenthood, no guidance since they have no fathers and no path since schools since they accepted Common Core and discontinued all shop classes that teach skilled labor. We are in this place because idiots voted for it. If you kept voting for Democrats and expected something different, you are the problem." 

On January 12, 2018, the police chief placed the officer on administrative leave while an internal investigation proceeded. During the investigation, the investigators uncovered other social media posts, including the following post by the police officer related to the death of Treyvon Martin:

“Treyvon made his own choice to be a thug and got himself killed. We all have choices. We can be good guys or bad guys. Treyvon chose to be a bad guy. Zimmerman is not.” 

The police department determined that the officer violated department General Orders by engaging in conduct unbecoming an officer, failing to conduct himself in a civil and professional manner, among other violations and terminated the officer. The police union then filed a grievance with the city, arguing that the termination violated the union agreement, which eventually found its way to arbitration.

The arbitrator determined that while the city had just cause to discipline (but not terminate) the officer for disclosing investigative information outside of proper police channels, the officer's social media posts did not violate city rules or regulations. The arbitrator acknowledged that the social media comments were possibly "offensive to many" but did not reference race or explicitly show racial animus. 

The city appealed, arguing that the arbitrator exceeded his authority in ordering the city to reinstate the officer and that the reinstatement violated public policy. The circuit court confirmed the arbitrator's decision, and the city appealed.

In City of Peoria v. Peoria Police Benevolent Ass'n, the Appellate Court agreed with the circuit court that the arbitrator did not exceed his authority in its ruling. The Court also rejected the city's argument that public policy prohibits reinstatement of a racist police officer. While the Court acknowledged that the social media posts were inappropriate and insensitive, as well as offensive and demeaning, it agreed with the circuit court that because the posts were not "overtly racist", they did not violate any public policy precluding reinstatement of the officer.

Tuesday, December 6, 2022

Generic (Unidentifiable) Patient Admission Information Subject to FOIA

In 2018, the Chicago Sun-Times submitted a FOIA request to Cook County Health and Hospitals System (CCHHS) seeking the times/dates of admissions for gunshot wound patients seeking treatment at CCHHS, and the corresponding times/dates these admissions were reported to law enforcement. CCHHS denied the request alleging that the records were exempt pursuant to FOIA exemption 7(1)(a), because the Health Insurance Portability and Accountability Act (HIPAA) prohibits disclosing personal health information (PHI), as well as FOIA exemption 7(1)(b), which exempts private medical information. After the Sun-Times filed a lawsuit alleging that CCHHS denied the records in violation of FOIA, the trial court ruled in favor of CCHHS.

After the Sun-Times appealed, we posted on this blog about the First District Appellate Court’s reversal of the trial court and ruling in favor of the Sun-Times. In that post, we discussed how the Appellate Court held that CCHHS could disclose the years that gunshot patients were admitted and the years that law enforcement was notified about those admissions without violating HIPAA or a patient’s privacy rights, because this information could be “de-identified” to provide only the years while removing other PHI. Similarly, the Appellate Court determined that disclosing the year of a patient’s admission, by itself, does not constitute a private medical record prohibited from disclosure under FOIA section 7(1)(b), especially where the information “is entirely divorced from any personally identifying information.”

In Chicago Sun-Times v. Cook County Health and Hospital Systems, the Illinois Supreme Court affirmed the Appellate Court’s judgment. Specifically, the Court found that disclosing de-identified information regarding the year of admission and police notification is not specifically prohibited by HIPAA, so CCHHS improperly withheld the information pursuant to FOIA exemption 7(1)(a). The Supreme Court also rejected CCHHS’s argument that the entire medical record is exempt under FOIA exemption 7(1)(b), finding that the year element is not private medical information under FOIA, and that by removing uniquely identifying information from a patient’s healthcare history, the remaining non-exempt, de-identified portions of the responsive record is subject to disclosure.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, December 5, 2022

Quorum Forum Podcast Ep. 67 Just Released

Ancel Glink has just released a brand new Quorum Forum podcast episode: Quorum Forum 67: An Old Tradition for the New YearThe Quorum Forum podcast team loves a good tradition. To ring in the New Year, we will be reviewing case law and legislation that our local government listeners should be aware of as we head into 2023.

Happy Holidays from Ancel Glink's podcast team!