Attorneys' Fees Awarded Under FOIA Even Where Public Body Voluntarily Turns Over Records

Attorneys' Fees Awarded Under FOIA Even Where Public Body Voluntarily Turns Over Records

  Thursday, January 07, 2016    Julie Tappendorf

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We have reported previously on court cases that have interpreted the attorneys' fee provision in the FOIA statute for prevailing parties. In 2012, the Second District Appellate Court interpreted that provision in FOIA to require a public body to pay attorneys fees to a plaintiff only where the plaintiff prevailed in court - in other words, the court required nothing less than "court-ordered relief" in order for a party to obtain an attorneys fee award.  In 2014, the First District Appellate Court disagreed with the Second District's interpretation, finding that even where the public body voluntarily turns over the records to the plaintiff, the public body could still be responsible for the plaintiff's attorneys fees.  

As we noted in our blog post about these cases, this later ruling is a troubling one because it appears to impose a policy that punishes a public body even where it does the right thing - i.e., turns over records during litigation. We urged legislative action to clarify this issue, but unfortunately no action has been taken.  

Just last week, the Fifth District Appellate Court adopted the First District's interpretation, finding a public body responsible for the plaintiff's attorneys fees even where the public body turned over the records while litigation was pending.  Perdue v. Village of Tower Hill.  In this case, the appellate court held that no court order is required  for a plaintiff to prevail in a FOIA suit. Instead, a plaintiff may be entitled to attorneys' fees if the requester obtains the records after filing suit even without the court ordering the release. 

One interesting distinction between this case and the First District case is that the trial court in Perdue had awarded only about one-third of the requested attorneys' fees. The appellate court upheld this fee award as "reasonable," based on the Village's early attempts to try to resolve certain issues with the plaintiff which could have reduced litigation costs. The court also noted that the plaintiff only obtained about half of the records he originally requested, also supporting a lesser attorney fee award.

Unfortunately, this ruling, as well as the earlier First District holding, do little to encourage a public body to voluntarily release records after a complaint has been filed. 

Post Authored by Julie Tappendorf

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PAC Finds State Agency in Violation of FOIA

PAC Finds State Agency in Violation of FOIA

  Wednesday, January 06, 2016    Julie Tappendorf

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Just a few days before the end of the year, the Public Access Counselor issued its 15th binding opinion for 2015. 

In  PAC Op. 15-015, the PAC found in favor of the public body - JUST KIDDING!  The PAC found the Governor's Office of Management and Budget, a state agency, in violation of FOIA when it denied the SEIU's request for a copy of a PowerPoint presentation that described budget policy. 

The GOMB had denied the request based on section 7(1)(f) of FOIA, claiming it was a record "in which opinions are expressed, or policies or actions are formulated." The GOMB explained that the slides provided recommendations to the hired analysts on how best to go about their vital role of gathering and analyzing budget information. The PAC rejected these arguments, finding that the slides were more in the nature of general policy considerations and did not reflect the "give and take of any deliberative process" concerning the budget. As a result, the PAC ordered the GOMB to release the slides to the union. 

Although the opinion was not favorable for public bodies, it does provide some guidance on how the PAC interprets the deliberative process exemption in 7(1)(f) - very narrowly.

Post Authored by Julie Tappendorf

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Task Force on Local Government Consolidation and Unfunded Mandates Issues Final Report

Task Force on Local Government Consolidation and Unfunded Mandates Issues Final Report

  Tuesday, January 05, 2016    Julie Tappendorf

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Early last year, Governor Rauner created a Task Force to consider the consolidation of Illinois’ many units of local government and the impact that unfunded mandates has had on them. The Task Force recently issued a report of over 400 pages with its findings and recommendations.

Not surprisingly, the Task Force found that state property taxes are high because of the sheer number of Illinois’ local governments.  The Task Force also found that unfunded mandates were “the other main driver of high property taxes,” noting that the unfunded mandates were primarily imposed by the State.  The most costly unfunded mandates related to public pensions, collective bargaining and interest arbitration, worker’s compensation, health insurance and prevailing wage laws.   The Task Force noted that unfunded mandates added to the burden on  local governments since 1992 and clearly outpaced inflation. 

The recommendations of the Task Force, briefly summarized, are as follows:

1. Enact a four year moratorium on creating new local governments, unless the new government is a result of consolidating two or more existing local governments.
2. Empower voters to consolidate or dissolve local governments via referendum.
3. Expand DuPage County’s pilot consolidation program to all 102 counties.   This allows counties to dissolve or consolidate government units whose boards are appointed by the county.
4. Allow all coterminous townships to consolidate with coterminous municipalities via referendum.
5. Remove the limitation capping township size to 126 square miles.  This would allow townships to consolidate with one another.
6. Allow counties to retain their existing form of government following a successful referendum to dissolve townships into the county.
7. Hold taxpayers harmless from township consolidation.
8. Allow counties with fewer than 15,000 parcels and $1 billion in equalized assessed valuation to dissolve all of the elected township assessors and multi-township assessment districts into one, newly elected county assessor position and office – by majority vote of the county board or via citizen-led referendum.
9. Protect the Intergovernmental Cooperation Act.
10. Provide the Illinois State Board of Education flexibility to incentivize outcomes of school district consolidation.
11. Encourage state agencies to facilitate regional sharing of public equipment, facilities, training, resources and administrative functions.
12. Allow merger of general township road and bridge districts that maintain less than 25 miles of road.
13. Modernize newspaper public notice mandates.
14. Repeal or reform prevailing wage.
15. Provide third-party contracting mandate relief for school districts.
16. Implement physical education mandate relief for school districts.
17. Provide driver education mandate relief for school districts.
18. Make collective bargaining permissive, instead of mandatory.
19. Eliminate minimum manning from collective bargaining.
20. Use the federal definition for “catastrophic injury” under the Public Employee Safety Benefits Act.
21. Allow arbitrators to use existing financial parameters of local government as a primary consideration during interest arbitration.
22. Require an annual state review of unfunded mandates on local government.
23. Merge downstate and suburban public safety pension funds into a single pension investment authority, as amended.
24. Pass a constitutional amendment on unfunded state mandates.
25. Request the Governor to use his amendatory veto power to insert “if economically feasible” language into any language authorizing new unfunded mandates on local governments and school districts.
26. Create an “economic feasibility exemption” for units of local government, school districts, community colleges and institutions of higher learning.
27. Give control of employee retirement benefits packages back to local governments for new employees.

The next step in this process is that the Task Force will be dissolved pursuant to statute following the issuance of this report.  Task Force members will be invited to sponsor legislation to promote the Task Force’s recommendations.  For additional information regarding these recommendations and topics, please contact Keri-Lyn Krafthefer or Jim Rock. 

Post Authored by Keri-Lyn J. Krafthefer, Ancel Glink

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Top 10 MM Blog Posts of 2015

Top 10 MM Blog Posts of 2015

  Monday, January 04, 2016    Julie Tappendorf

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Happy New Year!  For fun, let's recap 2015, blogger-style.  The following is a list of the 10 most popular posts of 2015:

10.  Social Media Records Retention Guidance for Local Governments

9.   Medical Marijuana Licenses Issued

8.  Supreme Court's Case May Require Sign Code Amendments

7.  FOIA Amended to Address Severance Agreements

6.  Home Addresses of Public Officials Exempt from FOIA

5.  Government Emails on Private Devices/Accounts

4.  Supreme Court Addresses Knock and Talk Exception to 4th Amendment

3.  Q&A About New Email Posting Requirement

2.  Zoo Worker Fired for Social Media Post About Member of the Public

And the most popular post of 2015:

1.  No Joke - April 1st Deadline to Post Elected Officials Emails on Website

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City Council's 3-2 Approval of Tax Levy Validated by Appellate Court

City Council's 3-2 Approval of Tax Levy Validated by Appellate Court

  Wednesday, December 30, 2015    Julie Tappendorf

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In June, we posted about a trial court decision that invalidated the City of Crystal Lake's tax levy ordinance. The trial court had ruled that the 3-2 vote of the City Council to approve the tax levy was insufficient because state statute requires four affirmative votes to pass an ordinance. As a result of the invalidation of the tax levy, the court ordered the City to refund the City portion of the property taxes due and paid in 2014 to the taxpayers.  Taxpayers Get Refund Because of 3-2 Vote on Tax Levy Ordinance.

The City appealed, and last week the appellate court reversed the trial court, holding that home rule voting procedures prevailed over the general voting provisions set forth in state statute. WKS Crystal Lake v. LeFew, 2015 IL App(2d) 150544. 

The tax objectors had argued that 65 ILCS 5/3.1-40-40 required the City Council to vote by a “concurrence of a majority of all members then holding office on the city council” to approve the tax levy ordinance.  The City countered that the City had adopted Robert’s Rules of Order, which only requires an affirmative majority of those voting to pass a measure.  Because the City is home rule, the appellate court found that the City's local voting requirement prevailed over the requirements of state statute.

Post Authored by Julie Tappendorf

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Physical Fitness Test Not an "Act of Duty" for Line of Duty Pension

Physical Fitness Test Not an "Act of Duty" for Line of Duty Pension

  Tuesday, December 29, 2015    Julie Tappendorf

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After a police officer was injured participating in a physical fitness test, he applied for a "line of duty" disability pension. The officer had been injured in the act of bench pressing 200 pounds. The Sugar Grove Police Pension Board held a hearing, and at the conclusion voted to deny the line of duty pension, finding that the injury did not occur in the line of duty under the Pension Code. 

The decision of the Pension Board hinged on whether the physical fitness test was the "performance of an act of duty" under the Pension Code. The Board held that it was not because the bench-press test did not involve “special risk, not ordinarily assumed by a citizen in the ordinary walks of life." As a result, the Board found that the test was not an act of duty that would qualify the officer for a line of duty pension. 

On appeal, an appellate court agreed with the Pension Board that the officer's injury did not qualify him for a line of duty pension, concluding as follows:

The definition of “act of duty” is not strictly limited to activities involving the protection of public safety (id.), it is not so broad as to embrace physical-fitness activities in which individuals in ordinary walks of life participate.

Swoboda v. Board of Trustees of Sugar Grove Police Pension Board, 2015 IL App (2d) 150265

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Court Rejects Occupy Chicago Protesters' Challenge to Park Hours Ordinance

Court Rejects Occupy Chicago Protesters' Challenge to Park Hours Ordinance

  Monday, December 28, 2015    Julie Tappendorf

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A provision of the Chicago Park District Code prohibits people from being in Chicago parks from 11 pm to 6 am. Several Defendants who were participating in Occupy Chicago were arrested after numerous warnings to vacate Grant Park during the banned hours. The charges were dismissed by the trial court, who found the ordinance unconstitutional as a violation of equal protection and right to free assembly. The City of Chicago appealed, and the appellate court recently reversed the trial court's decision, finding the ordinance constitutional. City of Chicago v. Alexander, 2015 IL App (1st) 122858-B.

First, the appellate court addressed the protesters claims that the ordinance was a violation of their First Amendment rights. Although the court acknowledged that the protesters were exercising their First Amendment rights to free expression and speech, it held that the City had the right to enact regulations on use of the parks. In this case, the park hours of operation regulation was content-neutral, applied to all City parks, and was intended to preserve the parks cleanliness and safety, a legitimate concern of the City. The court also rejected the protesters' argument that the ordinance was overbroad, finding that it only prohibits the use of City parks for 7 hours and the protesters had alternative means of conducting their expressive activity (i.e., assembling on public sidewalks) adjacent to the park. The court noted that alternative modes of communication need not be the first choice of the speaker, so long as it does not totally foreclose a speaker's ability to reach an audience. In short, the court rejected the protesters' challenges to their arrest and remanded the case for further proceedings.

Post Authored by Julie Tappendorf

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PAC Finds Records of Task Force to be Subject to FOIA

PAC Finds Records of Task Force to be Subject to FOIA

  Tuesday, December 22, 2015    Julie Tappendorf

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Two PAC opinions in one week? A holiday bonus, no question.

In its 15th opinion of 2015, the PAC...wait for it....found a public body in violation of FOIA.  In this opinion, a requester had filed a request with the City of Danville for various records (minutes, correspondence, notices, etc) relating to the Danville Housing Task Force. The City denied the request, on the basis that the Task Force was not a public body subject to FOIA. The requester then filed an appeal with the PAC.  PAC Op. 15-015.

The City defended its denial in two ways.  First, the City argued that the Task Force was not a public body subject to FOIA.  Second, the City argued that because the Task Force was not a public body, its records were not "public records" under the definition of FOIA, so were not subject to FOIA.

With respect to the City's first argument, the PAC took the position that whether or not the Task Force was a public body was not relevant to the FOIA request. Instead, the PAC stated that since the FOIA was submitted to the City, it was the City that must respond to the FOIA. 

The PAC also rejected the City's second argument. The PAC stated that the Task Force was organized by a City department and used City resources during business hours. Based on these two issues, the PAC held that the records "pertain to the transaction of public business of the City." As a result, they must be released under FOIA.

Based on the PAC's analysis in this case, the records of any private group that has some interaction with a public body could be subject to FOIA. For example, a Chamber of Commerce may meet at City Hall, have City Council or City staff as members, and assist with City economic development and other business development matters. Based on this opinion, the records of the Chamber (which is clearly not a City department or subsidiary body) could be subject to FOIA. That is a very broad reading of FOIA. It will be interesting to see whether the City provides the documents or appeals to the circuit court. Past appeals of similar PAC opinions have been successful, including the recent decision in Board of Education of Springfield Sch. Dist. No. 186 v. Attorney General of Illinois, 2015 IL App (4th) 140941.

Post Authored by Julie Tappendorf

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Failure to Respond to FOIA is a Violation

Failure to Respond to FOIA is a Violation

  Monday, December 21, 2015    Julie Tappendorf

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No surprise that right after I publish a "summary" of the PAC's 11 binding opinions of 2015 that the PAC would issue another opinion. Also not surprising that the 12th opinion of 2015 offers little guidance to public bodies on any unique or unusual interpretation or application of FOIA or OMA that might actually help them comply with these laws. 

In PAC Op. 15-012, a union organization filed a FOIA request with Chicago State University asking for all records relating to all employment positions. When CSU did not respond to the FOIA request, the union filed a request for review with the Public Access Counselor. The PAC found CSU in violation of FOIA for failing to respond to the FOIA request.

Yes, that is the extent of the entire opinion.

Post Authored by Julie Tappendorf, Ancel Glink  

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Indiana's Cold Beer Sale Restrictions Upheld

Indiana's Cold Beer Sale Restrictions Upheld

  Friday, December 18, 2015    Julie Tappendorf

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It's Friday and I'm in Las Vegas.  It seems appropriate that I leave you with a case about booze.  I think it pairs nicely with yesterday's video gaming case. 

An association of Indiana convenience stores filed a lawsuit seeking to invalidate the state law, claiming that the law violates the Equal Protection Clause because it discriminates against certain types of stores, including grocery and convenience stores. Indiana state law allows package liquor stores to sell cold beer, but grocery and convenience stores cannot. 

Indiana defended its state law by arguing that the plaintiffs’ equal-protection challenge is “doomed” because state authority to regulate how alcoholic beverages are sold is “nearly absolute” under the Twenty-first Amendment. The Seventh Circuit Court of Appeals did not go that far, finding Indiana's argument a "considerable overstatement."  Nevertheless, the Court of Appeals upheld Indiana’s cold-beer statute, finding it satisfied rational-basis review. Indiana argued that the goal of its regulatory scheme is to curb underage beer consumption by limiting the sale of immediately consumable cold beer. Restricting the sale of cold beer to stores that are more rigorously regulated is rationally related to that legitimate goal. That was good enough for the 7th Circuit, which upheld Indiana's prohibition on the sale of cold beer by grocery and convenience stores.  Indiana Petroleum Marketers and Convenience Stores v. Cook (7th Cir. December 14, 2015)

Cheers! (unless you are in Indiana)

Post Authored by Julie Tappendorf

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Appellate Court Upholds $1000 Video Gaming Fee

Appellate Court Upholds $1000 Video Gaming Fee

  Thursday, December 17, 2015    Julie Tappendorf

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Last December, we reported on a trial court decision upholding Elmwood Park's $1,000/terminal fee for video gaming licenses. Village's $1000 Video-Gaming License Fee Upheld. Last week, an appellate court decided Accell Entertainment Gaming LLC's appeal of that decision, ruling in favor of the Village and upholding the license fee.  

The Village had adopted an ordinance imposing a $1,000 license fee per video gaming terminal, relying on its home rule authority to impose the fee. A gaming company applied for and obtained state licenses to install video gaming terminals in a restaurant in Elmood Park. However, the company did not pay the Village's license fee, nor did it obtain the required local licenses for the gaming machines. Instead, the company requested that the Village waive the fee. When that request was denied, the company sued, claiming the fee was unconstitutional and the Village was preempted from requiring a license or license fee.

The appellate court upheld the ordinance based on Elmwood Park's home rule authority. Specifically, the court found the ordinance pertained to the Village's local government or affairs and was not preempted by state law. The court noted that the challenged ordinance "applies only to video gaming operations within the Village boundaries and it does not attempt to regulate video gaming operations outside of the Village’s boundaries." The court also determined that the license fee was not preempted by section 21 of the Riverboat Gambling Act, and also was not an impermissible occupation tax. At most, the court stated, the license fee was a tax that the Village was authorized to impose. As a result, the court upheld the trial court's dismissal of the challenge to the Village's video gaming licensing fee and ordinance. Accel Entertainment Gaming, LLC v. Village of Elmwood Park

On the same day it ruled in the Elmwood Park case, the appellate court issued a similar opinion upholding Cook County's video gaming tax of $1000 in Illinois Coin Machine Operators, et al. v. County of Cook. The analysis in both cases is nearly identical, although the first involved a home-rule municipality and the second a home-rule county.

Post Authored by Julie Tappendorf

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Appelate Court Reverses 2 PAC Binding Opinions

Appelate Court Reverses 2 PAC Binding Opinions

  Wednesday, December 16, 2015    Julie Tappendorf

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We have previously reported on two binding PAC opinions that found a Springfield School District in violation of the Open Meetings Act in its actions in terminating its superintendent in 2013.  See posts here, here, and here.  In a bit of good news for public bodies, the appellate court reversed the PAC yesterday in Board of Education of Springfield Sch. Dist. No. 186 v. Attorney General of Illinois, 2015 IL App (4th) 140941.

In its first binding opinion on this matter, issued in 2013, the PAC concluded that the District violated the OMA when the Board members signed the separation agreement in closed session. Specifically, the PAC ruled that the signing constituted "final action" in violation of Section 2(e) of the OMA.

In the second binding opinion, issued in 2014, the PAC concluded that the District violated the OMA when the Board did not sufficiently describe the separation agreement before it voted to approve the agreement.  

The District appealed both of these binding opinions to the circuit court.  In November of 2013, the circuit court found that the Board erred in concluding that signing the agreement constituted final action, finding that the final action actually occurred on March 5, 2013, when the Board voted to approve the agreement in open session.  In September of 2014, the circuit court reversed the second binding opinion, finding that the PAC's opinion "significantly expands the requirements" of the OMA by requiring the public body to explain he significance of the final action to be taken. 

Subsequently, the PAC appealed both circuit court rulings to the appellate court, which issued an opinion yesterday upholding the circuit court rulings.  In short, the appellate court ruled against the PAC, and held that the District did not violate the OMA.  

First, the appellate court agreed with the circuit court that the signing of an agreement in closed session did not constitute final action. The court held that the District's final action on the separation agreement was taken a month later, in open session, and in accordance with the OMA.  Second, the appellate court held that the public was adequately informed of the action that was taken by the Board in voting to approve the separation agreement. The agreement itself was made available on the District's website in advance of the meeting and the Board President introduced the agreement at the meeting. The court found no requirement under the OMA that the Board explain the significance or impact of the proposed final action, as argued by the PAC.

This is certainly good news for public bodies that may have been concerned how these binding opinions might affect their use of consent agendas or require some form of detailed explanation of the significance or impact before voting on each agenda item. In this case, the appellate court acknowledged that the OMA requires no such explanation.   

Post Authored by Julie Tappendorf

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