PAC Issues 8th Binding Opinion on FOIA Challenge

PAC Issues 8th Binding Opinion on FOIA Challenge

  Wednesday, July 16, 2025    Julie Tappendorf

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In March 2025, a news organization submitted a FOIA request to a school district seeking a copy of an email attachment sent by the school district’s board president to other board members. The attachment related to a billing dispute between the school district and its former legal counsel. The school district denied the request citing various FOIA exemptions.

After the news organization submitted a request for review with the Illinois Attorney General's Public Access Counselor (PAC) challenging the denial of their request, the PAC issued its eight binding opinion of 2025, concluding that the school district improperly withheld the responsive record. PAC Op. 25-008.

First, the PAC determined that the requested record was not exempt from disclosure pursuant to Section 7(1)(m) of FOIA, which exempts attorney-client privileged communications. The PAC acknowledged that billing invoices or statements containing confidential, privileged communications between a public body and its attorney for the purpose of seeking or providing legal advice are protected from disclosure under Section 7(1)(m) of FOIA. The PAC also acknowledged that billing invoices or statements describing the nature of services performed, a public body’s motive for seeking legal representation, or litigation strategy, are also protected from disclosure pursuant to Section 7(1)(m) of FOIA. Here, however, the PAC determined that the contested record was not exempt from disclosure pursuant to Section 7(1)(m) because it did not reveal the substance of matters for which the school district sought legal advice or any legal advice the school district’s former attorneys provided while acting as their legal advisor—rather, the record broadly pertained to a billing dispute between the school district and its former legal counsel. 

Second, the PAC rejected the argument that several Illinois Supreme Court Rules of Professional Conduct (Rules) prohibited the school district from disclosing the contested record. Specifically, the PAC found that the Rules apply to and govern the conduct of attorneys, not their clients. In this case, the PAC determined that the Rules do not specifically prohibit public bodies from disclosing non-exempt public records in response to a FOIA request.

Lastly, the PAC found that the contested record was not exempt from disclosure pursuant to FOIA’s deliberative process exemption in Section 7(1)(f) of FOIA because the record did not reflect deliberations with a third party acting on the school district’s behalf. Instead, the PAC opined that the contested record was a communication to the school district from its former legal counsel, which, in that correspondence, was acting with independent interests that were not aligned with the school district’s interests at the time it received the correspondence. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Quorum Forum Podcast Ep. 95: Legislative Update

Quorum Forum Podcast Ep. 95: Legislative Update

  Tuesday, July 15, 2025    Julie Tappendorf

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After the Illinois General Assembly concluded its spring session, Ancel Glink’s Eugene Bolotnikov joined the Quorum Forum Podcast to talk about recent legislation local government should know, including updates on veteran housing, grant opportunities for libraries, law enforcement hiring practices and more. You can listen here: Episode 95: Legislative Update

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Court Finds Public Body Properly Denied FOIA Request for Fatal Accident Records

Court Finds Public Body Properly Denied FOIA Request for Fatal Accident Records

  Monday, July 14, 2025    Julie Tappendorf

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An Illinois Appellate Court issued an opinion in favor of a government body after a media outlet filed a lawsuit challenging its response to the media's FOIA request for records pertaining to a fatal accident. NBC Subsidiary v. Chicago Police Department.

An investigative television producer submitted a FOIA request to a municipal police deparrment (CPD) and the Office of Emergency Management and Communications (OEMC) requesting various records relating to a fatal hit and run accident. CPD denied the request, citing various exemptions including that state law prohibited release of the officer body worn camera recordings, and that release of other records would interfere with pending law enforcement proceedings or would obstruct an ongoing criminal investigation. The OEMC also denied the request submitted to it for police observation or surveillance camera recordings on the basis that release would impede CPD's open investigation

The requester filed a lawsuit against CPD and OEMC, and the trial court ruled against the requester, finding that the denials were proper under FOIA. The trial court found persuasive an affidavit of a CPD officer that detailed how release of the requested records would compromise the current investigation because the perpetrator was still at large and release of the requested records could negatively affect the CPD's ability to obtain witness cooperation, among other things.

The requester appealed, arguing that the officer's affidavit was insufficient to satisfy CPD's and OEMC's obligations under FOIA to prove by clear and convincing evidence that release of the withheld records would interfere with pending or reasonably contemplated law enforcement proceedings. The Appellate Court disagreed, finding that the officer's affidavit contained sufficient details to meet the statutory burden, and that the affidavit was not simply a conclusory or generic statement as the requester claimed.

The Appellate Court also held that the requester was not entitled to redacted versions of the law enforcement records at issue, finding that the case involved a small number of records, and there was nothing to suggest that the records contained information that was not exempt. So, the Court held that the records were properly withheld in their entirety in this case.

The Appellate Court also found no merit in the requester's argument that the voluntary disclosure of certain information in the traffic crash report undermined a denial of other records.

Finally, the Court rejected the requester's argument that the body worn camera recordings should be released because the witnesses and victim did not have a "reasonable expectation of privacy" under the Body Camera Act because their encounter with officers was in a public place. The Court noted that the phrase "reasonable exeptation of privacy" in the Body Camera Act was dependent on the context of the law enforcement encounter and the potential distribution of the recording, so that a reasonable person engaging with law enforcement would expect that a recording would not be publicly disseminated to the news media or public at large, even where the encounter is on a public street. The Court also acknowledged that individuals who have just witnessed a traumatic incident such as a fatal car accident would not reasonably expect the police to release video to the public of their vulnerable state or that a person receiving treatment in an ambulance would not reasonably expect the police to release video footage of their treatment.

In sum, the Court upheld the CPD and OEMC's denials of the requester records in their entirety.

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Seventh Circuit Allows First Amendment Retaliation Case to Continue

Seventh Circuit Allows First Amendment Retaliation Case to Continue

  Wednesday, July 09, 2025    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently allowed a lawsuit filed by a deputy sheriff of a county sheriff's department who claimed he was retaliated against for exercising his First Amendment rights to move forward. Reilly v. Will County Sheriff's Office.

In 2017, a deputy sheriff in a county sheriff's department announced he was running a campaign for county sheriff against his boss. During his campaign, the deputy publicly criticized his boss. While the campaign was ongoing and prior to the election, the deputy took a promotional examination and was placed first on the sergeant promotional list. The sheriff had the ultimate decision on the sergeant promotion, and between 2018 and 2019, the sheriff selected five other candidates on the promotional list to be promoted to sergeant. Ultimately, the deputy lost the election, and his boss was relected as sheriff.

The deputy filed a lawsuit against the sheriff's office and the sheriff, claiming they retaliated against him because of his criticism of the sheriff during the 2017 campaign. The deputy claimed the sheriff admitted publicly that he passed the deputy over for promotion because of his criticism during the 2017 campaign. The defendants filed a motion to dismiss arguing the deputy's complaint did not state a valid claim and that it was untimely because it was filed more than 2 years after the promotional list expired. The district court agreed with the defendants, and dismissed the case and did not allow the deputy to file an amended complaint.

The deputy appealed the dismissal of his case to the Seventh Circuit Court of Appeals, which reversed the dismissal, finding that the complaint stated a plausible claim for First Amendment retaliation, and that the district court applied too high of a standard in not allowing the deputy to file an amended complaint. 

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Court Upholds Termination of School Counselor for Speech at Rally

Court Upholds Termination of School Counselor for Speech at Rally

  Wednesday, July 02, 2025    Julie Tappendorf

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A Wisconsin school district terminated a school counselor after she delivered a profanity-laden speech denouncing gender ideology and transgenderism and their impact on children at a rally at the state capitol. The guidance counselor filed a civil rights lawsuit against the school board and three school officials claiming she was unlawfully fired in retaliation for exercising her First Amendment right to freedom of speech. The district court denied her request for a preliminary injunction and dismissed her First Amendment claim, finding that the school district's interests as a public employer outweighed her speech rights under these circumstances. On appeal, the Seventh Circuit Court of Appeals upheld the dismissal in Darlingh v. Maddaleni (7th Cir. July 2, 2025).

After video of her speech at the rally appeared on YouTube, the school opened an investigation, ultimately firing her for violating school policies that prohibited abusive and intimidating language and bullying. The school also explained that her speech at the rally impaired her ability to perform as a guidance counselor, damaged the school's reputation, and undermined its mission to provide an equitable and supportive learning environment for all students.

On appeal, the Seventh Circuit Court of Appeals applied the U.S. Supreme Court's Pickering balancing test to the counselor's First Amendment claim. That test requires a court to determine whether the public employer's interests outweigh the employee's free speech rights. In applying that test, the Seventh Circuit examined whether the counselor's speech was constitutionally protected - i.e., was she speaking as a citizen on a matter of public concern? The Seventh Circuit determined that while the counselor's speech interests were strong, and the topic she spoke on was a matter of intense public concern, the context of her speech and her role as a school guidance counselor was important in the analysis. In balancing the school district's interest that guidance counselors have an "inordinate amount of trust and authority," against the guidance counselor's speech at the rally which the court found to be "a harsh, angry, and profanity-filled public pledge...that was hardly compatible with her obligation to build student and parental trust," the Seventh Circuit concluded that the school district's interests outweighed the guidance counselor's free speech rights in these circumstances. As a result, the guidance counselor's speech fell outside the scope of the First Amendment's protection as applied to public employment. 

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