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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

Wednesday, December 27, 2023

Summary of 2023 Binding PAC Opinions (OMA)

  Wednesday, December 27, 2023    

Following our earlier summary of the 2023 PAC binding opinions on FOIA, today we focus on the PAC’s four binding opinions issued on OMA matters in 2023, which are linked below.

PAC Op. 23-014 (no final action in closed session)

In PAC Op. 23-014, the PAC determined that a public body voting to approve its closed session meeting minutes from a prior board meeting in closed session violated the OMA because it constituted a “final action” that public bodies are prohibited from taking in closed session. The PAC rejected the argument that OMA section 2(c)(21) authorizes approving closed session minutes in closed session, noting that this section only allows a discussion of whether to approve closed session minutes, but does not authorize final action on those minutes, which must be taken in open session under an agenda item that identifies the final action to be taken.

PAC Op. 23-013 (improperly restricting public comment on personnel matters)

In PAC Op. 23-013, the PAC concluded that a public body violated the OMA by restricting the content of a public comment about the board’s hiring policy. 

PAC Op. 23-004 (requirement to state general subject matter of item subject to final action)

In PAC Op. 23-004, the PAC found that a public body violated the OMA by failing to indicate the general subject matter on the agenda of the proposed final action on a severance agreement after the public body returned from executive session. 

PAC OP. 23-003 (improper meeting)

In PAC Op. 23-003, the PAC determined that a public body violated the OMA by holding an improper meeting without posting advance notice of the meeting and complying with other OMA requirements. Specifically, the PAC found that an informal “Meet and Greet” gathering that was attended by a majority of a quorum of a board to collect information and answer questions from staff on substantive public business matters qualified as a “meeting” under the OMA, even if no formal action was taken by the board at the gathering.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Tuesday, December 19, 2023

Summary of 2023 Binding PAC Opinions (FOIA)

  Tuesday, December 19, 2023    

It's that time of year when we close out 2023 with a summary of the binding opinions issued by the Illinois Attorney General's Public Access Counselor's office (PAC). To-date, the PAC has issued 15 binding opinions, which are all published on the Attorney General's website. Today, we will focus on the PAC’s 9 binding opinions on FOIA.

PAC Op. 23-001, PAC Op. 23-011, PAC Op. 23-012 (failure to respond to FOIA requests)

In binding opinions PAC Op. 23-001, PAC Op. 23-011, and PAC Op. 23-012), the PAC found that several public bodies violated FOIA by failing to respond to FOIA requests. 

PAC Op. 23-002 (employee survey results)

In PAC Op. 23-002, the PAC found that a public body properly denied a FOIA request seeking certain employee survey results used in connection with preparing performance evaluations for staff members pursuant to FOIA section 7(1)(f). 

PAC Op. 23-007 (request improperly denied as unduly burdensome)

In PAC Op. 23-007, the PAC determined that a public body improperly denied a categorical FOIA request for emails as unduly burdensome. The PAC found that the city’s insistence that the requester identify specific employees or email addresses was unreasonable, because the city was required to make “judgment calls” to identify specific employees whose emails are reasonably likely to contain responsive records since the public body is in a better position than members of the public to know which employees are likely to have sent or received emails on a particular subject. 

PAC Op. 23-008 (request improperly classified as commercial request)

In PAC Op. 23-008, the PAC found that a public body violated FOIA by improperly categorizing a FOIA request as a commercial request and imposing an improper "review" fee. 

PAC Op. 23-009 (public body employee arrest and conviction record)

In PAC Op. 23-009, the PAC determined that a public body violated FOIA by withholding police reports concerning a teacher who was arrested and convicted of a crime against a minor victim. The PAC disagreed with the police department’s claim that the entire report was exempt from disclosure because of the risk of disclosing the minor's identity.

PAC Op. 23-010 (juvenile law enforcement records)

In PAC Op. 23-010, the PAC found that a public body did not violate FOIA by withholding arrest report in its entirety that involved a minor arrestee, even though the report also included information about an adult arrestee. Because the police report at issue involved the investigation of multiple minors and charges against one minor, the PAC determined that the record was a “juvenile law enforcement record” under the Juvenile Court Act (JCA), which are confidential and prohibited from being disclosed except to certain authorized parties.

PAC Op. 23-015 (non-disclosure agreement)

In PAC Op. 23-015, the PAC found that a city violated FOIA by withholding a non-disclosure agreement between the city and a private developer concerning a development project from disclosure pursuant to FOIA exemption 7(1)(g) which protects trade secrets or other confidential information that would cause competitive harm if disclosed. 

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

  

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Thursday, December 14, 2023

PAC Finds that NDA for Development Project Was Not Exempt from FOIA

  Thursday, December 14, 2023    

A reporter submitted a FOIA request to a municipality seeking a non-disclosure agreement between the city and a private company concerning a development project. The city denied the request citing FOIA exemption 7(1)(g). After the requestor submitted a request for review to the PAC, the PAC issued a binding opinion finding that the city violated FOIA when it withheld the NDA. PAC Op. 23-015.

Section 7(1)(g) of FOIA exempts certain records from disclosure that contain:

  1. a trade secret, commercial, or financial information, 
  2. that was obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are either (a) proprietary, (b) privileged, or (c) confidential, and 
  3. that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business.

The PAC found that the NDA satisfied the first two elements because the NDA contained commercial information relating to a commercial project and it contains a clause providing that the existence of the agreement is confidential. However, the PAC determined that the city and company failed to set forth specific facts or evidence to demonstrate how disclosure of the NDA could reasonably be expected to result in competitive harm to the company, much less that it would cause harm. The PAC found that the NDA primarily consisted of boilerplate language setting forth the parameters for confidentiality but did not reveal information about sensitive matters, including the company’s business strategies, expenses, or revenues, or details concerning plans for the proposed development project.

The PAC also determined that the fact that the company had customarily and actually treated commercial information in the NDA as private and confidential in the past did not provide an independent basis for the city to withhold the record under FOIA section 7(1)(g).

The city also argued that disclosing the NDA would deter businesses from entering into future public-private partnerships with the city because of the risk that competitors would use that information for their own competitive purposes. The PAC rejected that argument, finding that the potential for competitive harm on this basis was not present in this matter because the company had issued a public press release concerning the development nine days before the FOIA request was submitted, so release of the NDA would not have been the first disclosure of the existence of the development project. 

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Wednesday, December 13, 2023

Court Dismisses Challenge to City Business License Denial

  Wednesday, December 13, 2023    

An Illinois Appellate Court ruled in favor of a city in a lawsuit involving a business owner challenging the city's denial of a business license, finding that the owner had not exhausted its administrative appeals. Mary Jane Sweet Spot LLC v. City of Blue Island

In this case, an owner filed for a business license to operate a small bakery. The city clerk discovered that before the owner obtained its business license and other approvals, including a liquor license, the owner had thrown a large gathering at its future business address and was planning to throw another large gathering, with alcohol, which violated city code. Based on these actions and misstatements of the scope of the business on the license application, the city denied the business license application. The owner appealed the denial at an administrative hearing, where the administrative hearing officer issued a decision recommending that the city council uphold the denial of the license. The owner did not, however, take the appeal to the city council and instead filed a lawsuit against the city. 

The Appellate Court determined that the owner failed to exhaust its administrative remedies before filing the lawsuit. The city code included language providing for an appeal of a business license denial before the city council. The owner appealed the city's denial of the license to the city's administrative hearing officer who recommended the city council uphold the denial of the business license. The owner then filed a lawsuit, but never actually appealed to the city council. Because the owner did not complete all of its opportunities for administrative relief, the Appellate Court dismissed the lawsuit as premature.

Post Authored by Daniel Lev, Ancel Glink

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Tuesday, December 12, 2023

Illinois Supreme Court Dismisses Class Action Challenging Parking Ticket Policy

  Tuesday, December 12, 2023    

The Illinois Supreme Court recently dismissed a class action lawsuit challenging the City of Chicago's parking ticket citation practice in the downtown central business district (CBD). Pinkston v. City of Chicago

The City of Chicago imposed two different fines for expired parking meters depending on whether a car was parked within or outside its CBD, and fines were larger within the CBD. A driver was given an expired meter ticket with a CBD fine despite being parked further south than the CBD’s southernmost boundary. The driver paid the fine, without contesting the ticket, but then later filed a lawsuit. The lawsuit, which was filed on behalf of all who had been ticketed, claimed that the City had a routine practice of issuing tickets (over 30,000 of them) imposing CBD parking fines to cars parked outside the CBD boundaries. The circuit court dismissed the lawsuit and the driver appealed. On appeal, the appellate court reversed the trial court, sending the case back for further proceedings.

The case eventually made its way to the Illinois Supreme Court, which dismissed the case for failure to exhaust administrative remedies because the citations were not challenged through an administrative appeal process before the class action lawsuit was filed. The Court also determined that since the driver did not challenge his own ticket, there was no determination that the driver’s ticket was improperly written, so the driver could not establish his right to represent the class. The Supreme Court rejected the driver's argument that the nature of the lawsuit as a class action exempted it from the "exhaustion of remedies" doctrine. 

Post Authored by Daniel Lev, Ancel Glink

  

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Monday, December 11, 2023

Tuesday, December 5, 2023

PAC Finds Public Body in Violation of OMA for Approving Closed Session Minutes in Closed Session

  Tuesday, December 05, 2023    

The Illinois Attorney General's Public Access Counselor (PAC) issued its 14th binding opinion of 2023 finding a public body in violation of the OMA for taking final action to approve closed session meeting minutes in closed session. PAC Op. 23-014.

A trustee filed a complaint with the PAC alleging that his board voted to approve the closed session meeting minutes of a prior board meeting while in closed session in violation of the OMA. According to the PAC opinion, the board took a vote on the minutes in closed session but did not take any action in open session to approve the closed session minutes. The PAC determined that the vote in closed session to approve the closed session meeting minutes constituted "final action" that section 2(e) of the OMA provides cannot be taken in closed session.

The PAC rejected the public body's argument that section 2(c)(21) of the OMA (reprinted below) expressly authorizes approval of the minutes in closed session, finding that this section only allows discussion of whether the public body will approve the minutes but it does not authorize final action on those minutes which, the PAC said, must be taken in open session under an agenda item that identifies the final action to be taken. The PAC directed the board to include the closed session meeting minutes on its next board meeting agenda for approval in open session.

(21) Discussion of minutes of meetings lawfully closed under this Act, whether for purposes of approval by the body of the minutes or semi-annual review of the minutes as mandated by Section 2.06.

Although not raised in the trustee's complaint, the PAC also noted that the board failed to cite to the above-referenced OMA section when it went into closed session and also did not include a reference to the approval of closed session meeting minutes on the agenda for this meeting.

  

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Monday, December 4, 2023

Person's Own FOID Card Records Not Releasable Under FOIA

  Monday, December 04, 2023    

Two individuals submitted separate FOIA requests to the Illinois State Police (ISP) seeking records relating to their own Firearm Owners’ Identification (FOID) cards. ISP denied both requests, citing FOIA exemption 7.5(v), which exempts from disclosure the names and information of people who have applied for or received FOID cards under the Firearm Owner’s Identification Card Act. Both requesters then sued ISP, claiming it denied their FOIA requests in violation of FOIA. The circuit court and the Appellate Court ruled in favor of the requesters, finding the requested records were not exempt from disclosure because the requesters were seeking their own FOID records, and ordered ISP to disclose each requester's FOID card application and ISP’s FOID card revocation letters previously sent to the requesters.

On appeal, the Illinois Supreme Court reversed and ruled in favor of the ISP, finding that FOIA section 7.5(v) is a blanket exemption prohibiting the disclosure of all FOID card information under FOIA, with no exception for requesters who seek their own information. The Supreme Court also rejected the Appellate Court’s argument that an individual may consent to the disclosure of their own FOID card information. Because there is no federal or state law that requires ISP to disclose the requested FOID information, the plaintiffs could not consent to the disclosure of otherwise exempt private FOID card information. Hart v. Illinois State Police.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Thursday, November 30, 2023

Court Upholds Road Impact Fees Imposed Through IGA and Annexation Agreement

  Thursday, November 30, 2023    

An Illinois Appellate Court recently validated an intergovernmental agreement (IGA) that required the municipalities subject to the IGA to require, as a condition of annexation, that developers pay impact fees for road improvements and determined that a developer was required to pay the fees. Habdab v. Lake County.

In 2009, Mundelein (Village), Lake County (County), and two other municipalities entered an IGA to provide for construction funding for highway improvements that would serve each municipality. The IGA required that half of the costs of the improvements be paid by the public and the other half be paid by impact fees on future developers who build near the improvements. The fee amounts were calculated depending on the size and location of each parcel. The IGA required the municipalities to require that developers proposing to annex property into the municipality to enter into annexation agreements that would include provisions stating that a developer’s plans would not receive final zoning approvals until the required impact fees were collected.

In this case, a developer purchased various parcels within the highway improvement areas of the Village. Neither the annexation agreement nor its amendments included provisions requiring the developer to pay the road impact fees although two of the agreements included language that the developer did not agree to pay the fees. When the Village and County tried to collect the impact fees, the developer filed a lawsuit to avoid payment. The circuit court ruled in favor of the Village and County finding the developer was responsible to pay the road impact fees.

On appeal, the developer argued the following: 

(1) the road impact fees violated state statute, specifically, the Impact Fee Law; 

(2) the imposition of the road impact fees violated his constitutional rights; and 

(3) the developer never agreed to pay the road impact fees through the annexation agreements.

First, the Appellate Court held that the IGA impact fees were not subject to the Impact Fee Law. Under the Impact Fee Law, “road improvement impact fees” are charged by a unit of local government as a condition for a building permit or certificate of occupancy. Here, the IGA fees were imposed as a condition of an annexation agreement and not a permit or certificate, so the Impact Fee Law did not apply.

Second, the Appellate Court rejected the developer's argument that the impact fees were unconstitutional conditions. First, the Court found a sufficient connection between charging the developer fees for road improvements and the stated purpose for imposing the fees which was to reduce traffic congestion. Second, the Court found the fees were roughly proportional to their impact because they were based on the size and location of each parcel. As a result, the Court found that the doctrine of unconstitutional conditions did not apply to the IGA road impact fees so the fees did not constitute an unconstitutional taking without just compensation.

Finally, the Appellate Court rejected the developer’s argument that it never agreed to pay the IGA fees. The Court noted that the annexation agreement expressly stated the developer would pay the IGA fees if a legal challenge failed and, since the developer’s legal challenge was rejected, the developer was required to pay the IGA impact fees.   

Post Authored by Daniel Lev, Ancel Glink

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Tuesday, November 28, 2023

Municipality Properly Denied Liquor License Based on Previous Denial of a Business License

  Tuesday, November 28, 2023    

A local liquor commission denied a liquor license to a proposed social club based on the proposed club's failure to obtain a business license, which had been previously denied because of a lack of parking for the business. The proposed club's owner appealed the denial to the State Liquor Commission, which upheld the denial, and the owner appealed to the circuit court. 

The circuit court upheld the denial, finding that both the local liquor commission's and the State Liquor Commission's decisions denying the issuance of a liquor license were "well-supported by the record." On appeal to the Appellate Court, the proposed club's owner argued that the denial was contrary to state statute and a violation of his civil rights. The Appellate Court rejected the owner's arguments and upheld the denial of the liquor license, finding that the municipality properly denied a liquor license where the proposed club had been previously denied a business license because of a lack of sufficient parking for the club. Sledge v. Village of Melrose Park.

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Monday, November 27, 2023

Court Upholds Dismissal of Hunter’s Case Against Forest Preserve District

  Monday, November 27, 2023    

A hunter’s lawsuit against a forest preserve district (District) claiming his constitutional rights were violated by the District because of restrictions on his ability to hunt on private land was recently dismissed in Brenczewski v. Forest Preserve District of Will County.

In 1996, the owners of a large parcel of land gave a hunter permission to hunt on their land, without charge. Over the next 20 years, the hunter claimed District employees interfered with his access to the private property and harassed him on multiple occasions. In 2020, District purchased a small piece of the private property, and as part of that purchase agreement, the owners revoked the hunter's permission to enter the property to hunt. The hunter then filed a lawsuit alleging the District violated his constitutional rights and interfered with a business interest between the hunter and the private property owners.

The trial court dismissed the constitutional claim, finding that a "permission to hunt" was not a right protected by the Constitution. The court also dismissed the hunter's business expectancy claim, finding the District immune from liability as a government entity. On appeal, the Appellate Court upheld the dismissal but on different grounds. As to his constitutional claim, the Court held that there was no constitutional violation because there was no government actor involved since any "right to hunt" on the land was between private parties - i.e., the owners of the private property and the hunter. The property owners termination of that "right" because it sold a portion of its property to a government actor did not result in the government violating any constitutional rights. On the business expectancy claim, the Court held that because the permission to hunt was for a non-commercial purpose and provided at no charge, there was no business relationship so there could be no business expectancy claim. 

Post Authored by Daniel Lev, Ancel Glink

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Wednesday, November 15, 2023

Illinois General Assembly Fall Session

  Wednesday, November 15, 2023    

The Illinois General Assembly adjourned its fall veto session last week. Before the session ended, the General Assembly acted on a few bills of interest that may be of interest to local governments. We summarized just a few of these below but note that these bills have not yet been enacted and are still awaiting Governor action. We will provide updates if these bills become law.

Electric Vehicle Charging Act Amendment (SB 0384)

We previously reported on the Electric Vehicle Charging Act. If signed by the Governor, this would clarify current language in the Act that refers to multi-family housing. Instead of using both “multi-unit” and “multifamily” residential buildings, this bill solves the ambiguity by only using the term “multifamily” residential buildings. Also, the bill would expand the definition of who is subject to the Act to include unit owners, tenants, landlords, associations of both newly constructed and existing single-family homes, and multifamily residential buildings with parking spaces.

2024 Township Elections (SB 0690)

If signed by the Governor, this bill would prevent a municipality from placing a mental health measure on their primary or general election ballot in 2024 if that municipality is in the same township where a community mental health measure was approved on the 2022 general election ballot.

Eligibility for Public Office (HB 0351)

If signed by the Governor, this bill would do two things. First, it would create a task force comprised of officials responsible for reviewing what criminal conduct currently disqualifies individuals from holding public office and making recommendations as to what criminal conduct should prevent an individual from holding public office. Then, the task force would produce a report, due May 1, 2025, to share its findings. Second, the bill would ban any person convicted of a felony, bribery, or perjury while serving as a public official from holding any local public office unless that person’s conviction was reversed or pardoned by the Governor.

Post Authored by Daniel Lev, Ancel Glink

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Wednesday, November 8, 2023

Record Creation Requirements of FOIA

  Wednesday, November 08, 2023    

As a general rule, the Illinois Freedom of Information Act (FOIA) does not require a public body to create records – instead, it requires a public body to provide access to records the public body already has in its possession or under its control, subject to applicable exemptions. However, there are a few provisions in FOIA that do require the creation, retention, and, in some cases, the posting of certain records by public bodies. These requirements are listed below:

  1. List of documents or categories of records that are immediately disclosable upon request.
  2. Current list of all types or categories of records under the control of the public body. 
  3. A description of the manner in which electronic records will be provided to persons who do not have reasonable access to computers or printers.
  4. A brief description of the public body.
  5. A short summary of the public body’s purpose.
  6. A block diagram of its functional subdivisions.
  7.  Total amount of the operating budget.
  8. Number and location of the public body’s offices.
  9. Approximate number of full and part time employees.
  10. Membership of all advisory boards, commissions, committees, or councils.
  11. Description of the method by which persons can file FOIA requests.
  12. Directory of FOIA Officers.
  13. Address where FOIA requests can be directed.
  14. FOIA fees.

Requirement 1 is contained in Section 3.5 of FOIA and is required to be developed by the FOIA Officer. Requirement 2 is contained in Section 5 of FOIA and must be maintained and made available upon request. A public body could meet both requirements by creating a list of the general categories of records that the public body maintains, and identifying on that list which of the records are immediately available upon request. For example, records that are posted on the public body’s website (e.g., ordinances, codes, minutes, agendas) would be the type of records that are immediately available under Requirement 1, as well as any paper records that the public body maintains and could make readily available (e.g., zoning map, OMA total compensation chart).

Regarding Requirement 3, Section 5 of FOIA requires a public body to provide, upon request, a description of the manner in which electronic public records can be obtained in a form comprehensible to persons lacking computer knowledge or access. For example, if a person is unable to reasonably access electronic public records, the public body could make those records available for physical inspection or copying.

Requirements 4-14 are all contained in Section 4 of FOIA. These requirements must be displayed at the public body’s administrative offices and posted on the public body’s website. Requirements 11-14 could be met by posting a public body’s FOIA policy, if the public body has adopted one. Posting a copy of the current adopted budget would satisfy requirement 7. To comply with the remainder of the Section 4 requirements, a public body could create a record that contains the rest of this information, post it at its administrative offices and on its website, and then update the record on a regular (i.e., annual) basis.

  

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Tuesday, November 7, 2023

Seventh Circuit Rejects injunction Against Enforcement of Protect Illinois Communities Act

  Tuesday, November 07, 2023    

Last week, the Seventh Circuit Court of Appeals issued a lengthy opinion in a Second Amendment challenge involving six consolidated cases. Bevis et al., v. State of Illinois et al..

The underlying cases involved challenges to the constitutionality of the State of Illinois "Protect Illinois Communities Act," that restricted the sale, delivery, manufacture, and possession of certain types of semi-automatic weapons and high capacity magazines and also challenges to various municipal ordinances that imposed similar restrictions. The nature of these appeals varied as some of the district courts had issued injunctions against the enforcement of challenged restrictions and other district courts had denied requests to enjoin the laws. 

In its opinion, the Seventh Circuit agreed with the underlying court decisions that refused to enjoin enforcement of the challenged law/ordinances, finding that the State of Illinois and the municipalities have a strong likelihood of success in the underlying lawsuits that challenged their restrictions. In analyzing the Second Amendment challenges, the Seventh Circuit discussed the difference between a handgun (which the Court acknowledged that law-abiding citizens have the right to keep for self defense) and nuclear weapons (which the Court said would not be protected by the Second Amendment right to bear arms) and determined that the type of weapons restricted by the challenged law and ordinances fell closer to the latter category, which the Court determined were more like military weaponry than civilian weaponry. The Court concluded that military weaponry does not fall within the type of "arms" protected under the Second Amendment.

The opinion includes a very detailed analysis of the Second Amendment and the cases that have been decided before this one, both in the majority opinion (which ruled in favor of the State and municipalities) and in the dissenting opinion. While lengthy, it is an interesting read.

  

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Monday, November 6, 2023

Quorum Forum Podcast Ep. 77: Housing Affordability at the ACSP2023

  Monday, November 06, 2023    

Ancel Glink has released a new episode of its Quorum Forum Podcast: Episode 77: Housing Affordability at ACSP2023. In this episode (recorded live at the 2023 Association of Collegiate Schools of Planning Annual Conference), Ancel Glink attorneys David Silverman and Dan Bolin discuss how communities are promoting housing affordability and review legal and practical approaches to addressing housing opportunities in Illinois and across the country. Thanks to APA Illinois for inviting us to the conference. 

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Friday, November 3, 2023

Court Distinguishes between "Private" and "Personal" Information under FOIA

  Friday, November 03, 2023    

In response to a 2016 FOIA request seeking records relating to the requestor’s criminal case, the Chicago Police Department disclosed certain records subject to certain redactions. A few years later, the requestor submitted another FOIA request seeking records and statements attributed to a specific witness that testified at the requestor’s criminal trial. Attached to the second FOIA request was a notarized statement from the witness consenting to disclosure of her personal information to the requestor. After CPD refused to disclose the private information of the witness, the requestor sued CPD alleging that it violated FOIA by withholding the private information because the witness provided her written consent to disclose her personal information. The circuit court ruled in favor of the City, finding that CPD’s redactions were proper.

After the requestor appealed, the Appellate Court in Brewer v. City of Chicago agreed with the circuit court. The Court noted that “personal information” and “private information” are not interchangeable terms under FOIA, and rejected the requestor’s argument that CPD was required to disclose the phone number of the witness because the witness consented to disclosure of her personal information. Instead, the Court held that a personal phone number is “private information” that is expressly exempt from disclosure under FOIA exemption 7(1)(b). Unlike “personal information” under FOIA exemption 7(1)(c), which can be disclosed if “consented to in writing by the individual subjects of the information,” FOIA authorized CPD to redact the private information exempt under a different FOIA exemption (section 7(1)(b)), even if the person who is the subject of the information that is being requested provides their written consent.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Thursday, November 2, 2023

Illinois County Has No Authority to Secede from Illinois According to the Attorney General

  Thursday, November 02, 2023    

The Illinois Attorney General doesn't issue very many general opinions (separate from the PAC opinions) but a recent opinion is worth a read as it involves an unusual issue - a county's secession from one state to an adjoining state.

At the request of the Jerseyville County Board, the County States Attorney requested an opinion from the Illinois Attorney General (AG) as to whether an Illinois county could secede from the State of Illinois and join the State of Missouri. According to the AG's opinion, the issue had arisen in connection with a discussion by the County Board about the placement of a referendum on the ballot to shift the border between Illinois and Missouri in order to relocate the Jerseyville County to the Missouri side.

The AG first reviewed the Illinois Constitution in connection with a county's non-home rule authority. While the AG acknowledged that the Illinois Constitution contains provisions for relocation of county borders, the AG found nothing that would authorize the relocation of county borders across state lines. Similarly, while the Counties Code discusses the transfer of territory between counties, those provisions relate to the transfer of territory within Illinois. The AG also found no authority in the Election Code to allow a county to secede from Illinois by referendum. Finally, the AG noted that secession could implicate various federal laws and the U.S. Constitution. 

In sum, the AG concluded that a non-home rule county does not have the authority to secede from Illinois in order to join Missouri. Ill. Att'y Op. 23-001.

  

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Wednesday, November 1, 2023

ICE Did Not Violate Federal FOIA in Redacting Records

  Wednesday, November 01, 2023    

A requestor filed several FOIA requests with United States Immigration and Customs Enforcement (ICE) under the federal FOIA statute, seeking records regarding his transfer from ICE custody to Indiana where he faced criminal charges. ICE produced certain records, but redacted (1) information protected by attorney-client, work product, or deliberative process privileges under FOIA exemptions; and (2) identifying information of government employees under other FOIA exemptions because disclosure would put employees at risk of harassment and serve no public benefit. The requestor sued ICE, alleging ICE’s redactions were improper. The district court ruled in favor of ICE, finding it properly redacted information. On appeal, the Seventh Circuit Court of Appeals also ruled in favor of ICE in Vidal-Martinez v. United States Department Of Homeland Security

First, the Seventh Circuit rejected the requester's argument that ICE could not rely on the attorney-client privilege to redact or withhold records because of the crime-fraud exception to the attorney-client privilege, finding no evidence to support the requestor’s claims that ICE engaged in any criminal conduct or sought to mislead the court.  

Second, the Seventh Circuit rejected the requestor’s petition for attorney’s fees, finding that ICE consistently maintained its intent to respond the FOIA requests both before and after the requestor sued, and any administrative delay in ICE responding to the FOIA requests did not trigger any award of attorney's fees under the federal FOIA statute.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Monday, October 30, 2023

11th Annual Local Government Law Institute - December 1st

  Monday, October 30, 2023    

Shout out to local government lawyers who follow Municipal Minute, don't forget to register for the IICLE Local Government Law Institute. This year's seminar takes place on Friday, December 1, 2023, and provides attendees with the opportunity attend in-person attendance at the UBS Tower in Chicago or by webcast. 

Here's a sneak peak of the sessions at this year's seminar:

  • Caselaw & Legislative Update
  • The First Amendment & Government Social Media Activities
  • Civil Rights: Supreme Court Shockwaves - 6 Months Later
  • Avoiding the Quagmire of Reasonable Accommodation Under the ADA: Municipal Best Practices
  • Lunch Panel: Advising Clients on Conflicts Issues
  • A Chat with the PAC
  • Representing Counties
  • Conflicts of Interest in Municipal Law (presented by the ARDC)

This seminar qualifies for 5.25 hours of general CLE, and 1 hour of Professional Responsibility CLE.

For more information, visit IICLE's website here.

  

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Thursday, October 26, 2023

Court Rejects Challenge to City's "Shared Housing" Ordinance

  Thursday, October 26, 2023    

The City of Chicago allows the owner of a two to four unit residential building to rent out a unit as a short term rental provided the building is the owner's primary residence. An owner who does not primarily reside in the building can request an "adjustment" from the City if the owner can establish certain factors. An owner of multiple residential buildings who received an adjustment for one building but was denied other adjustments in another building sued the City on several grounds, including arguing that the City ordinance was unconstitutional. The case made its way to the Appellate Court which ruled in favor of the City in Henderson v. City of Chicago.

The Appellate Court first rejected the owner's argument that the Ordinance was unconstitutional because it it required owners to provide sensitive or personal financial information in order to demonstrate a financial burden, in violation of the privacy clause of the Illinois Constitution. Second, the Court held that the Ordinance did not constitute an unreasonable property seizure under the federal or state constitutions, finding that the stated purpose of the Ordinance (to limit the number of shared housing units to reduce the burden or nuisance on neighboring residents) was a rational means to achieve the City's purpose. Third, the Court rejected the owner's argument that the investigation by the City to discover noncompliant rental listings was a warrantless search in violation of the constitution, finding that the owner did not meet his burden of showing how an electronic search by City investigators violated his constitutional rights. The Court also upheld the City's imposition of fines in the amount of $5,000 for the owner's failure or refusal to remove unregistered rental listings.

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Wednesday, October 25, 2023

7th Circuit Upholds Dismissal of Challenge to Demolition of Nuisance Structure

  Wednesday, October 25, 2023    

The Seventh Circuit Court of Appeals upheld the dismissal of a civil rights lawsuit against a municipality over the demolition of a public nuisance property. Willow Way, LLC v. Village of Lyons. 

After a real estate investment firm bought a dilapidated house and failed to make repairs to the property, the municipality sought to tear down the house as a nuisance. The municipality provided notice of the demolition to the investment firm and, after demolishing the house, sold the property at an auction to satisfy the municipality's lien for demolition expenses. The real estate investment firm sued the municipality claiming the demolition of the home was a taking and a violation of its substantive due process rights. The firm also raised an inverse condemnation claim under Illinois law. The district court ruled in favor of the municipality finding its demolition of the house as a public nuisance was not a due process violation and did not require compensation.

On appeal, the Seventh Circuit agreed with the dismissal, rejecting the real estate investment firm’s claims. First, the Court held there was no due process violation as federal law only requires property owners be proved fair notice and opportunity for a hearing to determine if the structure is a public nuisance. Since the municipality had provided prior notice of the condemnation to the real estate investment firm, and the firm failed to challenge the condemnation at a hearing, the Seventh Circuit found no due process violation. Next, the Court dismissed the inverse condemnation claim on jurisdictional grounds finding that the municipality was not liable for fluctuations in the market price of real estate or a decline in home value when the property was unoccupied and condemned as a public nuisance.  

Post Authored by Tyler Smith & Julie Tappendorf, Ancel Glink

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Tuesday, October 24, 2023

Quorum Forum Episode 76: Back to School at the APA-IL State Conference

  Tuesday, October 24, 2023    

Don't miss Quorum Forum's Episode 76: Back to School at the APA-IL State Conference where Ancel Glink attorneys engage conference attendees with recent land use and planning law cases and share their experiences attending and presenting at the conference.

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Monday, October 23, 2023

7th Circuit Dismisses City's Lawsuit Against Internet Streaming Services

  Monday, October 23, 2023    

In a recent decision, the Seventh Circuit Court of Appeals ruled against a municipality that had sued Netflix and other internet streaming services claiming the services were operating as unlicensed video service providers in violation of the Illinois Cable and Video Competition Law. City of East St. Louis v. Netflix.   

The city claimed the streaming services were "covered video service providers" operating without statewide authorization under the Illinois Cable and Video Competition Law (CVCL) and were required to pay a portion of their revenue to each municipality in Illinois. The city also raised common law trespass and municipal ordinance violation claims. The district court dismissed the city’s lawsuit, ruling the CVCL only allowed the state Attorney General to sue entities alleged to be operating without the required statewide authorization.

The city appealed, and the Seventh Circuit upheld the dismissal, rejecting the city’s claims. First, the Court held that internet streaming services were exempt from the CVCL’s definition of video service, and that content streamed over the internet is not covered under the CVCL’s regulatory scheme. Second, the Court held that transmitting streaming content through wires that crossed city-owned land was not a trespass. Finally, the Court held that internet streaming services did not violate a city ordinance prohibiting the re-sale of cable television services as the streaming services provided different services than traditional cable television providers. 

Post Authored by Tyler Smith & Julie Tappendorf, Ancel Glink

  

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Thursday, October 19, 2023

Appellate Court Upholds Attorneys Fee Award in FOIA Challenge

  Thursday, October 19, 2023    

After a City denied a FOIA request asking for traffic and environmental studies related to a development project, the requestor sued. Two weeks after the requester filed the lawsuit, the City provided the records to the requester. The circuit court held the case was "moot" since the City disclosed the responsive records. However, the court did award the requester attorneys fees, finding that the requestor had “prevailed” in his FOIA case because the City provided the records. On appeal, the City argued that requestor was not entitled to attorney fees and alternatively, that the fee award should be reduced. 

In Kieken v. City of Joliet, the Third District Appellate Court upheld the circuit court's award of attorneys fees. The Third District acknowledged that the Appellate Districts are divided on the issue of when a plaintiff has "prevailed" in a FOIA lawsuit to trigger FOIA’s attorneys' fee provision. The Third District noted that the Second District holds that a plaintiff is entitled to attorneys' fees under 11(i) only if there is a court order in the plaintiff's favor in the FOIA lawsuit. So, if requested records are voluntarily provided by the public body while the lawsuit is still pending, a plaintiff cannot have "prevailed" for purposes of an attorneys' fee award under FOIA. On the other side, the First, Fourth, and Fifth Districts all hold that the attorneys' fee provision in FOIA can be triggered even without a court order, meaning a plaintiff can "prevail" in their FOIA lawsuit even if the public body voluntarily provides the records while litigation is pending.

In this case, the Third District joined the First, Fourth, and Fifth Districts, holding that a court order is not required for a plaintiff to "prevail." The Third District adopted a test requiring a plaintiff to show that: (1) plaintiff filed a lawsuit against a public entity, (2) the entity produced the requested documents, (3) the lawsuit caused the documents’ production, and (4) the lawsuit was reasonably necessary to obtain those documents. In this case, the Third District held that the requestor’s lawsuit was reasonably necessary to obtain the requested documents, and the circuit court did not abuse its discretion in awarding attorneys’ fees to the requestor.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Tuesday, October 3, 2023

Court Dismisses Tort Claims Relating to Hotel Redevelopment

  Tuesday, October 03, 2023    

An Appellate Court dismissed a lawsuit against a municipality relating to a hotel redevelopment project. Matthews v. City of Peoria.

Plaintiffs filed a lawsuit against the city claiming the city interfered with a contractual relationship and a business expectancy relating to a proposed redevelopment of a hotel and adjacent properties. The complaint alleged that the city's requests for more information about the project and its alleged threats to discontinue public financing resulted in the loss of financing for the project and ultimately foreclosure and the bankruptcy of the hotel owners, resulting in plaintiffs losing their interest in the hotel project and opportunity for development fees. 

The city filed a motion to dismiss the two tort claims on the basis that the Tort Immunity Act applied and that the complaint failed to state a cause of action. The trial court dismissed the two counts, finding they were not timely filed within the one year statute of limitations under the Tort Immunity Act. Plaintiffs appealed, and the Appellate Court upheld the dismissal but on a different basis, finding that the complaint did not contain sufficient factual allegations to support these two claims. With respect to the tortious interference with contracts, the Appellate Court held that plaintiffs were not parties to the contracts they claimed the city breached. And as to the tortious interference with business relationships, the Court held that the complaint failed to include facts to support a reasonable expectancy of plaintiffs to enter into a business relationship. 

  

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Thursday, September 28, 2023

Court Upholds Ordinance Imposing Fees for Towing and Impoundment

  Thursday, September 28, 2023    

In Leehy v. City of Carbondale, an Appellate Court upheld a City ordinance requiring the payment of administrative fees for costs related to the towing and impoundment of a vehicle involved in certain crimes. Plaintiffs filed a lawsuit against the City to challenge the fees, claiming they were unconstitutional and that the City was reimbursed twice for the same costs under the ordinance and the Illinois Criminal and Traffic Assessment Act (Act). The trial court found that the fees were reasonably related to the costs incurred by the City and were not duplicative of the statutory fines authorized by the Act which related to DUI enforcement related activities like police vehicles and breathalyzers and not intended to reimburse the City for incurred costs as the ordinance fees provided.

Plaintiffs appealed and the Appellate Court upheld the ruling in favor of the City. The Appellate Court held that the Act authorizes a punitive fine assessed to individuals convicted or who plead guilty to a misdemeanor DUI. In contrast, the City ordinance authorizes imposition of a fee designed to recoup incurred costs of the City and the purposes and intent of the Act and ordinance were not the same. The Appellate Court also found the City's ordinance to be constitutional as it was rationally related to a legitimate governmental interest and was not arbitrary nor discriminatory. The Court noted that the City's fee does not need to represent the exact costs incurred but must at least relate to those actual costs. The court pointed to the fact that Plaintiffs failed to prove there was no reasonable relation between the fee and cost of service as well as that Illinois courts have upheld fees over five times greater than the actual cost, referencing A&H Vending Service, Inc. v. Village of Schaumburg, 168 Ill. App. 3d 61 (1988).

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

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Wednesday, September 27, 2023

Court Rejects Lawsuit Challenging City Officials' Social Media Posts

  Wednesday, September 27, 2023    

A resident (plaintiff) filed a lawsuit against a village, certain village officials, and a resident seeking damages for a variety of claims, including invasion of privacy, false light, disclosure of private facts, intrusion upon seclusion, and intentional infliction of emotional distress. The complaint claimed that the defendants posted various false statements about her on social media. The plaintiff also claimed that the defendants had obtained police reports about her and posted private medical information about her on social media. The plaintiff also alleged that the actions by defendant were in retaliation for her vocal comments criticizing one of the defendants fitness to serve as an elected official. One of the defendants settled with the plaintiff and the trial court dismissed the remainder of her case and rejected plaintiff's motion for sanctions, and she appealed to the Illinois Appellate Court. Williams v. Stuckly.

First, the Appellate Court rejected plaintiff's privacy and intrusion upon seclusion claims, finding that her allegations related to the publication of records that had been obtained through lawful means (FOIA) and that there was no evidence to support an expectation of privacy in the police reports disclosed through FOIA.

Second, the Appellate Court determined that there were insufficient factual allegations to support her false light claim and those that were included in the complaint were too vague and unclear.

Third, the Appellate Court upheld the dismissal of her conspiracy claim since that claim requires an underlying cause of action but all of her underlying claims had been dismissed. 

Finally, the Appellate Court determined that the plaintiff's motion for sanctions against one of the defendants was not well founded where plaintiff was seeking sanctions against a defendant despite the dismissal of the plaintiff's entire case. 

In sum, the Appellate Court upheld the trial court's dismissal with prejudice, finding that the plaintiff had been given three opportunities to plead an adequate complaint and had failed to do so.



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Tuesday, September 26, 2023

City Did Not Own Property Until Condemnation Proceedings Were Complete

  Tuesday, September 26, 2023    

In 2005, a city filed a lawsuit to acquire a low-income apartment complex through eminent domain proceedings. The case proceeded for 12 years, and the apartment complex continued to operate and the owners continued to pay property taxes. In 2018 (a year after the city acquired title to the property), the previous owners filed a tax objection complaint seeking a refund of over $6 million in property taxes they paid for the 12 year period between the filing of the eminent domain complaint and the date the city acquired the property. The trial court dismissed the case but the appellate court reversed and ruled in the property owners' favor, finding that the city "retroactively" owned the property from the date it filed its complaint and the property owners were entitled to a refund. That ruling was then appealed to the Illinois Supreme Court. 

On appeal, the Illinois Supreme Court reversed the appellate court and held that the city did not become the owner of the property until the condemnation proceedings were complete. The Court overruled a previous case (City of Chicago v. McCausland) that held that a government's title "related back" to the filing of the complaint for purpose of determining who is responsible for liens that had been filed after a condemnation complaint but before the condemnation proceedings were complete. As a result, the Court held that the previous property owners were responsible for the property taxes during the 12 year period between the filing of the complaint and the completion of the condemnation proceedings as they were the lawful owners of the property until the city acquired title. MB Financial Bank, N.A. v. Brophy, 2023 IL 128252.


  

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Thursday, September 14, 2023

Board Violated OMA in Restricting Content of Public Comment

  Thursday, September 14, 2023    

In a recent binding PAC Opinion, the PAC found a public body in violation of the Open Meetings Act (OMA) for restricting the content of public comment. PAC Op. 23-013. 

A member of the public submitted a request for review to the PAC claiming that a school board violated the OMA when the board president interrupted her during public comment when she referred to a hiring policy and informed her that she could not discuss personnel issues at a public board meeting. 

The PAC concluded the school board violated section 2.06(g) of the OMA by imposing a restriction on public comment that was not authorized by the board's "established and recorded" public comment rules. Although the school board had adopted public comment rules, those rules did not restrict public comment on personnel matters. The board responded that its restriction on discussing personnel issues was authorized by language on the board's annotated board meeting agenda stating that the school board requests that any matters concerning personnel or students be privately communicated to the board. However, the PAC rejected the board's argument, finding that there was no evidence that the board had communicated this restriction to the public. 

Although the PAC did not make a formal determination on whether the board could establish this type of restriction on public comment since its opinion was based on the requirement in section 2.06(g) that public comment rules be "established and recorded," the PAC did state that this type of restriction might constitute an impermissible content-based restriction on the speaker’s First Amendment rights. As we have noted on Municipal Minute before, the PAC has weighed in on constitutional issues in the past when deciding requests for review although the First Amendment was not the basis for this opinion.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

  

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Tuesday, September 12, 2023

Public Body Did Not Act in Bad Faith in FOIA Response

  Tuesday, September 12, 2023    

An Illinois Appellate Court determined that a public body did not act in bad faith when it denied a request for postmortem photographs even though the trial court ordered the public body to release the records. Thomas v. County of Cook, 2023 IL App (1st) 211656-U. 

While Thomas was serving 75 years in prison for a murder conviction, he filed a FOIA request with the County requesting all postmortem photographs, autopsy photographs, and x-rays of the decedent. The County withheld 35 of the 38 requested records, explaining that the release would constitute an "unwarranted invasion of personal privacy" and the records were exempt from release under section 7(1)(c) of FOIA. The County cited to binding PAC Opinion 10-003 in support of its denial.

Thomas sued the County, claiming its refusal to release the photographs was willful and in bad faith and violated FOIA. The trial court ruled in favor of Thomas, in part, and ordered the County to release the 38 autopsy photographs; however, the court rejected Thomas' argument that the County's denial was in bad faith. Thomas appealed the court's ruling that the County did not willfully and intentionally fail to comply with FOIA or otherwise act in bad faith. 

The appellate court agreed with the trial court that the County's denial of the request was not in bad faith because the County had relied on a binding PAC opinion that had determined that family members of the decedents have a privacy interest in keeping postmortem photographs from being released to the public. 

The appellate court did not address the trial court's substantive ruling that the photographs requested by Thomas were releasable nor did the appellate court distinguish the PAC Opinion that protected those records from release, likely because the County did not appear to appeal the substantive ruling. It is possible the trial and appellate courts may have weighed the interest of Thomas (who was serving time for the murder of the decedent) in receiving the photographs in this case as more significant than the interest of the reporter in the PAC opinion cited by the County. 

When relying on the "invasion of personal privacy" exemption of 7(1)(c) of FOIA, public bodies should make sure they balance the interests of the requester in the release of requested records against the privacy interests at stake. 

  

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Monday, September 11, 2023

Quorum Forum Podcast Ep. 75 - APA-CMS Bar Exam 2023

  Monday, September 11, 2023    

Ancel Glink's Quorum Forum Podcast just released a new episode: Quorum Forum Ep. 75 - APA-CMS Bar Exam 2023. In this episode (recorded live at the Haymarket Pub and Brewery), Ancel Glink attorneys discuss the most important planning law cases of the year in a simulated law school experience format targeted to planners and land use professionals. 

  

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Wednesday, September 6, 2023

PAC Binding Opinions and Indexes of OMA/FOIA Opinions

  Wednesday, September 06, 2023    

The last two binding opinions issued by the Public Access Counselor (PAC Op. 23-011 and 23-012) didn't provide public bodies with any guidance on compliance with FOIA or OMA, except to reiterate that public bodies are required to respond to FOIA requests, so we didn't see a reason to summarize those opinions.

However, we did want to remind our readers of two great resources for FOIA and OMA guidance that public bodies may find helpful. The PAC has posted on its website an index of binding OMA opinions and FOIA opinions. These indexes categorize the various binding opinions over the past 13 years and it looks like they have been regularly updated. 

So, if you are looking for guidance on public comment at meetings, or topics that can be discussed in closed session, or FOIA exemptions or fees, or any other topic addressed by the PAC in one of its binding opinions, these indexes could be a great starting point.

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Thursday, August 31, 2023

PAC Finds OMA Violation Where Committee Members Discussed Committee Business Outside Proper Meeting

  Thursday, August 31, 2023    

In another advisory PAC opinion shared by a reader, the PAC reviewed a complaint that two committees of a public body violated the OMA where committee members discussed public business outside of a properly noticed meeting. 2023 PAC 75602.

The PAC found one committee in violation of the OMA while finding the other committee did not violate the OMA. Although the topic of discussion between the respective committee members was the same, the reason for the distinction was the nature of the respective committee's jurisdiction. In one case, the PAC determined that the committee's jurisdiction included the topics discussed by the members so a majority of a quorum of that committee discussing that topic outside of a properly noticed meeting violated the OMA. With respect to the other committee, however, the PAC determined that this committee's jurisdiction had nothing to do with the topic discussed by the committee members, so their discussion outside of a meeting did not trigger the OMA.

This is a good reminder to members of public bodies to be careful not to discuss with a majority of a quorum of their public body any topics related to the business of the public body of which they are a member outside of a properly noticed meeting.

  

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Wednesday, August 30, 2023

PAC Finds No Violation of OMA for Meeting Notice and Location

  Wednesday, August 30, 2023    

Thanks again to a Municipal Minute reader for forwarding today's PAC advisory opinion which provides more guidance on notice posting requirements under the OMA.

In this advisory opinion, the PAC addressed a complaint that an advisory body of a city (a TIF joint review board or JRB) did not comply with the OMA. The complainant argued that the advisory body violated the OMA for several reasons, including that it did not post the notice of the JRB on the city's website, did not properly post its notice, and that its meeting should have been held at city hall rather than a city-owned museum. 2023 PAC 76681.

First, the PAC noted that the OMA only requires website posting of meetings of the governing body (in this case, the city council), and not other public bodies of the city. This issue was also discussed in yesterday's blog post.

Second, the PAC accepted the city's affidavit of city staff that the meeting notice was posted both at city hall and at the museum where the meeting was held as sufficient evidence that the meeting notice was properly posted absent any counter evidence by the complainant.

Third, the PAC found no violation in the JRB holding its meeting at a city-owned museum, noting that the OMA requires open and convenient meetings but does not mandate that meetings take place at the same location. Here, the notice specified the location of the meeting and there was no indication that the meeting location was either remote or inconvenient to deter the public from attending. The PAC also noted that the city stated that the location was chosen because of construction work on conference rooms at city hall.

Finally, the PAC rejected the complainant's argument that the JRB violated the OMA by not posting its minutes on the city's website, noting that the OMA only requires the "governing body" to post its minutes on the city's website and that, in any event, the JRB had not yet approved those meeting minutes.

Note that the complainant had also argued that the meeting time (1:30 pm on a workday) was inconvenient under the OMA. The PAC did not make a determination on this issue because it was later withdrawn by the complainant but did note that a public body conducting a meeting during regular business hours does not violate the OMA.

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Tuesday, August 29, 2023

PAC Finds OMA Violation Where Public Could Not View Meeting Notice From Outside Building

  Tuesday, August 29, 2023    

As we have said before, the PAC issues some of its more interesting opinions in a non-binding, advisory form - those opinions often provide public bodies with guidance on the day-to-day issues they confront in complying with FOIA and OMA. Thanks to a Municipal Minute reader, we are reporting on one of those opinions today. 

In a recent advisory opinion, the PAC determined that a committee of a public body did not violate the OMA when it failed to post a meeting notice on the public body's website but that the committee did violate OMA when it failed to ensure that its posted meeting notice was "continuously available" for 48 hours in advance of the committee meeting. 2023 PAC 75604

The PAC acknowledged that the OMA only requires the "governing body" of the public body to post meeting notices on its website, and the website posting requirement does not extend to meeting notices of subsidiary bodies of the public body, such as committees (see section 2.02(b) of the OMA, emphasis added):

In addition, a public body that has a website that the full-time staff of the public body maintains shall post notice on its website of all meetings of the governing body of the public body.

However, the PAC found that the committee's posted meeting notice did not meet the OMA requirements. Although the notice was posted at least 48 hours in advance on a scrolling screen in the main hallway of the public body's building, that building was not open to the public the entire 48 hour period, so the notice was not continuously available to the public in violation of the OMA. Interestingly, the PAC also questioned whether a "scrolling" screen would satisfy the OMA's "continuously available" requirement since the meeting notice would not be viewable at all times while the screen scrolled through other electronic materials, although the PAC did not decide the request for review on that issue and instead encouraged the public body to post a paper copy of its meeting notices in a location where the public can view the notice from the outside of the building at any time during the 48 hours prior to a meeting.

This is a good reminder to make sure that a public body's meeting notices can be viewed by the public from outside the building if that building is closed at any time during the 48 hour period prior to a meeting. Also, although the website posting requirement for meeting notices only applies to "governing bodies," it's good practice to post the meeting notices of subsidiary bodies on the public body's website as well because that practice can offer some protection to a public body if the posted meeting notice is somehow not "continuously available" for the 48 hour period, pursuant to the following provision in section 2.02(c) of the OMA (emphasis added):

The public body conducting a public meeting shall ensure that at least one copy of any requested notice and agenda for the meeting is continuously available for public review during the entire 48-hour period preceding the meeting. The public body conducting a public meeting shall ensure that at least one copy of any requested notice and agenda for the meeting is continuously available for public review during the entire 48-hour period preceding the meeting. Posting of the notice and agenda on a website that is maintained by the public body satisfies the requirement for continuous posting under this subsection (c). 

  

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Tuesday, August 22, 2023

FOIA Amended for Records Maintained by HIPAA Covered Entities

  Tuesday, August 22, 2023    

The General Assembly recently enacted amendments to the Freedom of Information Act (FOIA) that become effective on January 1, 2024 and will apply to public bodies that are also "covered entities" under HIPAA. P.A. 103-554.

First, the Act amends the definition of "private information" in FOIA to clarify that this exemption applies to electronic medical records and all information (including demographic information) that is contained within or extracted from an electronic medical records system operated or maintained by a public body that is also a "covered entity" under HIPAA.

Second, the Act adds a new exemption 7(1)(pp) that exempts from disclosure protected health information (PHI) that is maintained by a HIPAA covered entity.

  

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Wednesday, August 16, 2023

Illinois Supreme Court Upholds the Protect Illinois Communities Act

  Wednesday, August 16, 2023    

On August 11, 2023, the Illinois Supreme Court upheld the Protect Illinois Communities Act, an Illinois law that took effect on January 1, 2023, which prohibits the sale, manufacture, delivery, and import of assault weapons and large capacity magazines. The Act does contain exemptions for (1) trained professionals, such as law enforcement, correction, military, and privacy security and (2) "grandfathered" individuals who possessed assault weapons or large capacity magazines before the law took effect. Caulkins v. Pritzker, 2023 IL 129453.

A group of licensed pawn brokers, Illinois residents, and an association whose members possess valid Firearm Owner Identification cards challenged the new law in court, claiming it violated their equal protection rights and constituted special legislation. In March of 2023, a circuit court ruled in their favor, holding that the right to bear arms under the state and federal constitutions were fundamental rights, and that the law (1) denied plaintiffs equal protection by infringing on their gun rights, and (2) constituted special litigation by providing an arbitrary right to the exempt individuals while excluding plaintiffs. 

The case made its way to the Illinois Supreme Court on a direct appeal from the circuit court. The Illinois Supreme Court reversed the circuit court decision. First, the Supreme Court concluded that the law does not deny equal protection nor does it constitute special legislation because plaintiffs did not sufficiently allege that they are similarly situated to and treated different from the exempt classes. The Supreme Court noted that the law balances public safety against the expertise of the trained professionals and the expectation interests of the grandfathered individuals. Second, the Illinois Supreme Court found that the plaintiffs had waived any Second Amendment challenge to the law because their complaint failed to include a challenge under that provision of the U.S. Constitution.

Note that this new law does not change the legal landscape regarding municipal regulation of assault rifles, which we discussed in 2015 when we reported that Illinois preempted municipalities from enacting their own assault rifle bans. 

Post Authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink. 

  

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Monday, August 14, 2023

Court Rules in Favor of Municipality in FOIA Case Involving Records Not Kept by Municipality

  Monday, August 14, 2023    

The Appellate Court recently ruled in favor of a public body in a FOIA case that involved records and data that the public body did not maintain or keep. Chicago Recycling Coalition v. City of Chicago Department of Streets and Sanitation.

The Coalition filed a FOIA request with the City seeking a number of records, including third-party hauler reports submitted to the City as required by a City ordinance and residual rate and contamination data regarding non-recyclable materials collected from receptacles. The City provided the Coalition with copies of third party hauler reports, as well as other data submitted by third party haulers relating to rate and contamination data. The Coalition filed a lawsuit claiming that the City violated FOIA by not turning over all third-party hauler reports and by not providing rate and contamination data relating to City services. The City argued that it had searched its records and did not have reports from all of its third party haulers (some of the third party haulers had not submitted reports to the City as required by the Ordinance) and that it did not create, keep, or maintain rate and contamination data for services provided directly by City employees. The circuit court ultimately ruled in the City's favor, and the Coalition appealed.

On appeal, the Appellate Court upheld the ruling in favor of the City, finding no violation of FOIA. 

First, the Court held that the City was only obligated to turn over records it actually had in its possession, and that it had no obligation to reach out to the third-party haulers to have them create reports to submit to the City. Although the Court acknowledged that the City's ordinance required the haulers to file these reports, FOIA was not the mechanism to enforce that ordinance nor did the City's ordinance provide a basis for defining a public body's obligations under FOIA. The Court concluded that since "FOIA does not obligate a public body to create a new record, it also does not obligate a public body to compel a nonpublic, third-party entity to create and submit a record, even if the submission of such record is mandated by law."

As to the residual rate and contamination data, the Court acknowledged that the City had submitted an affidavit of a City official certifying that the City does not create, maintain, or keep this data where services are provided by City employees rather than third-party haulers. As a result, the Court found no violation of FOIA in the City's denial of this data, holding that "an agency cannot improperly withhold records that it does not maintain."

  

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Thursday, August 10, 2023

New Law Authorizes Use of Design-Build Contracts for Municipalities and Schools

  Thursday, August 10, 2023    

The Illinois General Assembly recently enacted P.A. 103-491 (SB 1570) authorizing municipalities and school districts to enter into design-build contracts. This authority builds on the statutory authorization to choose the design-build delivery method that was previously given to the Chicago Park District, and then to all Park Districts formed under the Illinois Park Code, and has now been extended to municipalities through the Illinois Municipal Code and school districts through the the Illinois School Code. 

Non-home rule municipalities and school districts – like all units of non-home rule local government – are subject to the provisions of the Local Government Professional Services Selection Act which requires the unit of government to undertake a "quality-based" selection process for contracting with design professionals (e.g., architects and engineers) and which severely limits the ability to select a design professional on the basis of the design professional’s fee. In addition, other state laws mandate that certain public works contracts be competitively bid. Based on these current laws, non home rule municipalities and school districts have to follow a more traditional design-bid-build delivery method that involves the use of separate contracts - one with a design professional and one with a general contractor (or multiple contractors and a construction manager). 

With the enactment of this new law, municipalities and schools now have the option to choose the design-build delivery method. The new law establishes a two-phase selection process that includes development of the scope and performance criteria for design-build contracts, a procedure for selection of contracts, requirements for submission of proposals, procedures for awarding contracts, and requirements of reports and evaluation of contracts (and a shorter process if the total overall cost of a project is estimated to be less than $12,000,000). 

Post Authored by Derke Price, Ancel Glink

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Wednesday, August 9, 2023

New Law Gives Non-Home Rule Municipalities Authority to Adopt Administrative Adjudication System

  Wednesday, August 09, 2023    

The General Assembly recently enacted Public Act 103-0260 to expand the authority of non-home rule municipalities to adopt administrative adjudication hearing systems. In the past, this power was reserved to home rule municipalities. Administrative hearing systems can be a cost effective and efficient method for municipalities to pursue local ordinance and code violations. There are a few violations that cannot be adjudicated through a local administrative hearing system such as moving vehicle offenses under the Illinois Vehicle Code, among others.

In order to operate a local administrative hearing system, a municipality must first adopt an ordinance establishing the system and outlining the municipal code violations that will be adjudicated through the system. The ordinance establishing the adjudication system must include due process provisions providing for advance notice and the opportunity for a hearing. Parties must be provided notice of a violation in a manner reasonably calculated to give them actual notice, including, as appropriate, personal service, service by mail, or service by posting on the property where the violation is found. The notice of violation must describe the nature of the alleged code violation, the date of the hearing, penalties for failure to appear at the hearing, and the jurisdiction under which the hearing will be held. The party may be represented by an attorney at the hearing and has the ability to present witnesses and cross-examine opposing witnesses. Adjudication hearings are presided over by a hearing officer appointed by the municipality who is an Illinois state licensed attorney who has practiced for at least three years and who has completed a formal training on rules of procedure and the subject area of the ordinance violations that will be adjudicated. 

Adopting an administrative hearing system under this Act does not prevent a municipality from using other methods of enforcement.

This Act takes effect on January 1, 2024.

Post Authored by Megan Mack, Ancel Glink

  

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