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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, October 3, 2024

Public Body Properly Redacted 911 Callers' Phone Numbers in PAC Opinion


A law firm submitted a FOIA request seeking copies of 911 call recordings and other records related to a traffic crash, and the public body disclosed responsive 911 recordings, but redacted the callers' names and phone numbers. After the requestor submitted a request for review with the PAC challenging the redactions, the public body disclosed the names of the callers, but maintained that the home and personal phone numbers of the callers was exempt from disclosure under the "private information" exemption in FOIA. The PAC agreed with the public body and issued a binding opinion finding that the public body properly redacted the callers' phone numbers. PAC Op. 24-012.

First, the PAC rejected the requester’s claim that law firms are entitled to greater access to exempt information in public records because attorneys are officers of the court, noting that FOIA applies equally to all requestors and there is no statute supporting the existence of an “attorney-exception” that would allow attorney to have broader access to otherwise exempt information based on the professional credentials and motives of the requestor.

Second, the PAC rejected the requester's argument that the FOIA exemption in Section 7(1)(d)(iv) applies only to "confidential sources," finding that the exemption’s plain language includes people who file complaints with or provide information to law enforcement agencies, like the callers at issue.

Third, the PAC rejected the requester's argument that this same exemption does not apply when people call an agency and voluntarily provide their information, because the plain language of the exemption does not condition the confidentiality of a person’s name on whether those people have a reasonable basis to believe their names will be kept confidential. The PAC further noted that even if the 911 callers who provided their private phone numbers anticipated being contacted about what they witnessed, this possibility does not render this FOIA exemption inapplicable to the otherwise confidential identifying information of people who voluntarily contact law enforcement.

Finally, the PAC rejected the argument that the term "identities" in that FOIA exemption also includes at least one piece of personal information (e.g., home address, phone number, date of birth) in addition to a person's name, because there is no support for this claim. Indeed, the PAC determined that the term “identity” is typically defined as a person’s name, and a person’s other contact information is not necessary to provide an essential component of an "identity." Even if FOIA requires disclosing the identities of witnesses to traffic accidents, the PAC stated this does not diminish a public body’s authority to redact expressly exempt private information such as their phone numbers.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, October 2, 2024

In the Zone: Court Upholds Constitutionality of Horse Boarding Zoning Ordinance


An Illinois Appellate Court issued a ruling in favor of a Village in a longstanding dispute over a commercial horse boarding operation in Drury et al. v. Village of Barrington Hills, et al.

A property owner filed suit against the Village and his neighboring property owner to challenge the constitutionality of a zoning approval ordinance that allowed a horse boarding operation on his neighbor's property. The lawsuit claimed that the ordinance was unconstitutional because it did not benefit the "public welfare" but instead was intended to personally benefit his neighbor. The trial court upheld the zoning ordinance finding that it was "rationally related to the legitimate public interest of promoting horse-boarding operations" in the Village and plaintiffs appealed. 

On appeal, the Appellate Court upheld the trial court's ruling upholding the constitutionality of the zoning ordinance. First, the Court held that even though the zoning approval ordinance had since been repealed, the constitutionality of the ordinance was still relevant because the operator of the horse-boarding facility had filed a separate lawsuit claiming he had a vested right to continue his operations. Second, the Appellate Court rejected plaintiffs' argument that the trial court applied the wrong legal standard, holding that the "rational basis" test applied to their facial substantive due process challenge to the zoning ordinance. Applying the rational basis test to this challenge, the Court acknowledged that the Village had conducted extensive public hearings and received testimony and evidence from experts and numerous members of the public before acting on the zoning ordinance. The Court found the trial court's findings to be well reasoned and thorough, and agreed with its legal conclusion that the zoning ordinance was rationally related to a legitimate public welfare purpose. Finally, the Court rejected plaintiffs' argument that the zoning ordinance's "retroactivity" provision only benefited his neighbor, finding that it was actually beneficial to a number of other horse boarders in the Village. 

Tuesday, October 1, 2024

Court of Appeals Weighs in On Recent First Amendment Decision Issued by U.S. Supreme Court


In March, we reported on two opinions issued by the U.S. Supreme Court in cases involving First Amendment challenges to government officials’ use of social media on their personal social media accounts, including Lindke v. Freed. In Lindke, the Supreme Court announced a two-part test for establishing that an official’s actions on their personal social media acounts can be attributed to the government (and subject to First Amendment limitations. In order to show that an official’s social media activity on the official's personal social media account is subject to the First Amendment, it must be shown that the official:

  1.  has actual authority to speak on behalf of the government on a particular matter; and
  2.  purports to exercise that authority in the official's activities on social media.

The Lindke opinion was issued in response to a case challenging the social media activities of the City Manager of Port Huron, Michigan, who had deleted critical comments on his personal Facebook page that were left by an individual who was dissatisfied with the City’s handling of the COVID-19 pandemic. In addition to deleting the critical comments, the City Manager eventually blocked the critic from accessing his Facebook page altogether. The commenter sued the City Manager, claiming the deletion of comments and blocking violated his First Amendment rights. After the U.S. Supreme Court announced its two-part test, it sent the case back to the Sixth Circuit Court of Appeals to assess whether the City Manager’s social media activities violated the First Amendment. In late August, the Sixth Circuit issued its opinion, providing more insight on the analysis set forth by the Supreme Court.

For the first part of the test announced by the Supreme Court, the Sixth Circuit clarified that the City Manager must have had actual authority to speak on behalf of the City in his posts. The Sixth Circuit explained that the City Manager’s Facebook posts would need to be within his “portfolio of responsibilities” to bring his activity under First Amendment scrutiny. In other words, it would not be enough for an individual challenging his activities to show that he had some authority to speak on behalf of the City—rather, the posts must be clearly related to his role and responsibilities as City Manager. Additionally, the actual authority to speak on behalf of the government must come from a distinct statute, ordinance, regulation, custom, or usage. While it is relatively easy to show that an ordinance or regulation gives an official authority to speak, the Court acknowledged it can be difficult to show actual authority by “custom” or “usage,” which rely on unwritten practices that have become so widespread or common that they carry the force of law. The Sixth Circuit, echoing the Supreme Court, cautioned that assessing actual authority requires a close review of an official’s duties, and will be found where those duties include making statements on behalf of the government consistent with their office.

If the critic is able to show that the City Manager had actual authority to speak on behalf of the City, he then has to establish that the City Manager exercised that authority in the social media activity being challenged. The Sixth Circuit clarified that this second step of the test announced by the Supreme Court requires a post-by-post analysis. The commenter must show that the City Manager was exercising his official authority in the posts where his comments were deleted. For the challenge to the City Manager’s choice to block the critic from his page, however, the assessment is much broader -- any post on the account that is shown to be an exercise of his actual authority to speak on behalf of the City could result in liability under the First Amendment if the City Manager censored protected speech. The Sixth Circuit noted that “context is everything” for the post-by-post analysis under the second part of the test announced by the Supreme Court and requires a close review of the challenged posts’ content and function. The Sixth Circuit provided several examples of social media activity that would most likely lead to a finding that the First Amendment applies: 

  • Posts expressly citing an official’s legal authority to post on behalf of the government;
  • Posts that have some legal consequence, such as the posting of a “burn ban” by a municipal fire marshal; or
  • Posts that were made using government staff or funding.

Because the test announced by the Supreme Court was not available to the parties when the Lindke case was brought, the Sixth Circuit sent the case back to the district court to provide an opportunity to establish facts that shed light on this new test. The Sixth Circuit noted, however, that the state action analysis set forth by the Supreme Court does not address several other important issues that are relevant to a First Amendment challenge (including forum analysis and the application of qualified immunity), suggesting that there will likely be more litigation challenging government social media activities in the future.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink