FOIA Amended for Records Maintained by HIPAA Covered Entities

FOIA Amended for Records Maintained by HIPAA Covered Entities

  Tuesday, August 22, 2023    Julie Tappendorf

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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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Illinois Supreme Court Upholds the Protect Illinois Communities Act

Illinois Supreme Court Upholds the Protect Illinois Communities Act

  Wednesday, August 16, 2023    Julie Tappendorf

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

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

  Monday, August 14, 2023    Julie Tappendorf

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

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

  Thursday, August 10, 2023    Julie Tappendorf

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

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

  Wednesday, August 09, 2023    Julie Tappendorf

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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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Amendments to Affordable Housing and Appeal Act Enacted

Amendments to Affordable Housing and Appeal Act Enacted

  Tuesday, August 08, 2023    Julie Tappendorf

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P.A. 103-478 (SB 1476) was enacted last week to amend certain provisions of the Affordable Housing and Appeal Act, as follows:

First, the Act modifies provisions regarding the content of required affordable housing plans to require plans to also include a description of the following:

• A consideration of affordable housing for both owner-occupied dwelling units and dwelling units for rent as part of the identification of land most appropriate for the construction of affordable housing;
• housing market conditions;
• infrastructure limitations; 
• local government ordinances (including zoning or other land use ordinances), policies, or practices that do not affirmatively further fair housing;
• any other local factors that constrain the local government's ability to create and preserve affordable housing.

The plan must also include a plan or potential strategies to eliminate or mitigate any identified local constraints to affordable housing.

The Act also requires plans to include proposed timelines within the first 24 months after the plan is adopted for actions to implement the plan. 

The Act requires non-exempt local governments to submit a report within 4 years after adopting or updating a plan to IHDA summarizing actions the local government has taken to implement its affordable housing plan.

Second, the Act modifies provisions relating to developer appeals to the State Housing Appeals Board, expanding the parties that can file an appeal to include not only the affordable housing developer, but also persons who would be eligible to reside in the proposed development and housing organizations

Third, the Act modifies the make-up of the State Housing Appeals Board.

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New Laws Amend Illinois Prevailing Wage Act

New Laws Amend Illinois Prevailing Wage Act

  Wednesday, August 02, 2023    Julie Tappendorf

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There were a number of changes to the Illinois Prevailing Wage Act this session affecting government contracting that local governments should be aware of. We've summarized some of these amendments below, which will take effect on January 1, 2024, except for PA 103-188 which became effective June 30, 2023:

PA 103-48 (HB 3491) - This amendment to the Prevailing Wage Act provides a right of action  to workers employed by a contractor or subcontractor who is paid less than the prevailing wage rates for the work performed on a project covered by the Act.

PA 103-188 (HB 3351) - This law extends the Prevailing Wage Act requirements to projects that are undertaken pursuant to an incentive program or initiative described in the Illinois Power Agency Renewable Energy Resources Fund and Illinois Solar for All Program, except for residential buildings or houses of worship. Effective June 30, 2023

PA 103-327 (HB 2845) - This new law amends the Prevailing Wage Act to add the removal, hauling, transportation, and disposal of biosolids, lime sludge, and lime residue from a water treatment plant or facility.

PA 103-346 (HB 3370) - This new law amends the Prevailing Wage Act to add power washing to remove paint or other coatings, oils or grease, corrosion, or debris from a surface, or to prepare a surface for a coating to the Act.

PA 103-347 (HB 3400) - This new law amends the Prevailing Wage Act to add new reporting requirements that include reporting demographic information of workers on public work projects, to include gender, race, and ethnicity broken down by the following categories: (1) type of trade; (2) whether the worker is a journey worker or apprentice; and (3) total work hours performed.

PA 103-359 (HB 3792) - This new law amends the Prevailing Wage Act to add projects involving fixtures or permanent attachments to light poles owned by a public body with an exception for work performed by employees of the public body.

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Act Expands Reasons for Remote Attendance by Member of Public Body

Act Expands Reasons for Remote Attendance by Member of Public Body

  Tuesday, August 01, 2023    Julie Tappendorf

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The Governor recently approved P.A. 103-311 that amends the Illinois Open Meetings Act to expand the permissible reasons for a member of a public body to attend a meeting electronically. 

Section 7 of the OMA currently authorizes a member of a public body to attend a meeting electronically if the public body has adopted a policy to authorize electronic attendance and the member's reason for attending electronically meets the statutory qualifications. Prior to this amendment, a member could attend electronically (if approved by the public body) if he or she was absent due to (1) personal illness or disability; (2) employment purposes or the business of the public body; or (3) a family or other emergency. With this recent OMA amendment, Section 7 of the OMA also authorizes a member of a public body to attend remotely if the absence is due to an "unexpected childcare obligation."

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Court Finds Criticism of Police Chief by Former Officer Not Actionable Under First Amendment

Court Finds Criticism of Police Chief by Former Officer Not Actionable Under First Amendment

  Monday, July 31, 2023    Julie Tappendorf

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A former police officer brought a lawsuit against the Police Chief alleging that his First Amendment rights were violated. The officer had raised concerns about the Chief's actions at a fire and police commission meeting and claimed that the Chief harassed and retaliated against him because of his protected speech. The district court dismissed the lawsuit, finding that the officer's criticism of the Chief was not First Amendment protected speech because he made those remarks in his role as a public employee and not a private citizen. The Seventh Circuit Court of Appeals agreed with the district court, holding that a First Amendment retaliation claim requires a showing that the challenged speech was constitutionally protected, which the officer could not demonstrate in this case because the officer's criticism of the Chief was made as a public employee and not actionable under the First Amendment. Fehlman v. Mankowski.

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Court Rules in Favor of School District in Impact Fee Dispute with Builder

Court Rules in Favor of School District in Impact Fee Dispute with Builder

  Thursday, July 27, 2023    Julie Tappendorf

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Like many other municipalities, the City of Sycamore has enacted an impact fee ordinance that requires subdividers and developers to pay a fee in lieu of school sites to be transmitted to the school districts. The school impact fee is imposed on new residential dwelling units and the amount of the fee is based on the number of bedrooms of the proposed dwelling unit. The school impact fees imposed by the City for single family dwelling units were $817 for a two-bedroom home; $3,269 for a three-bedroom home; $5,560 for a four-bedroom home; and $4,310 for a five-bedroom home.

A school district filed suit against a home builder alleging that the builder had misrepresented in its building permit applications the number of bedrooms for some of the residential dwellings in order to pay a lesser school impact fee, depriving the district of at least $66,649 in impact fees. The school district presented testimony that the builder had submitted building plans for a certain number of bedrooms but later added closets to rooms described as dens or offices to create additional bedrooms without paying the additional impact fee attributable to the modified home. 

The builder argued that some of the homes had been modified after permits had been issued but that the City (as collector of the impact fees) did not have a process in place to require the builder to supplement the impact fees. The builder also argued that the school district was applying the wrong definition of "bedroom," which the builder argued required an egress window, smoke detector, and a carbon monoxide detector to qualify as a bedroom, as required by the City's building codes.

The trial court ruled in favor of the school district on its argument that the developer was required to pay impact fees for bedrooms that were "designed and ultimately used principally or primarily for sleeping purposes," applying the definition of bedroom contained in the City's Unified Development Ordinance. The court also rejected the builder's argument that the school improperly deposited the school impact fees. Board of Ed. of Sycamore v. Silverthorne Dev't

The builder appealed and the Appellate Court upheld the ruling in favor of the school district. First, the Court held that the proper definition of bedroom is the one contained in the City's UDO, which is where the impact fee regulations were contained. The UDO focuses on the residential uses and the need for adequate school facilities rather than the building code which focuses on building safety. Applying the UDO definition of bedroom, the Court held that the testimony and evidence supported the school district's argument that the rooms at issue (described in the building permit application as a den/office with a closet added later) were designed to be used principally or primarily for sleeping purposes. The Court also upheld the trial court's ruling that the school district did not improperly deposit impact fees into the wrong fund, determining that the state statute authorizing impact fees does not require school impact fees to be deposited into a special fund, just that the fees only be used for proper purposes as set out in the statute. In sum, the Court upheld the ruling in favor of the school district.

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Appellate Court Upholds Finding that Disputed Road was a Public Road

Appellate Court Upholds Finding that Disputed Road was a Public Road

  Wednesday, July 26, 2023    Julie Tappendorf

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An Appellate Court recently resolved a dispute as to whether a roadway was a private driveway (as claimed by the owner of property on both sides of the road) or a public roadway (as claimed by the county and an intervening party who argued the road provided access to other property, upholding the trial court's ruling that the roadway was a public road. Hicks v. Pope County Board

After the county informed the plaintiffs that they had to remove certain obstructions from the roadway, the plaintiffs filed suit to ask the trial court to declare the roadway as a private driveway. The county presented evidence to support its argument that it was a public road, including the county plat book, topographical maps, traffic maps, highway maps, and various other records to support its argument that the road was, in fact, public. The county also presented witnesses who testified that they had used the road for decades until the plaintiffs obstructed it. The plaintiffs testified that they had maintained the road since they moved to the property and had improved it from a dirt road to a gravel road at their expense. The trial court held that the evidence supported the county's argument that the road was public prior to the plaintiffs moving to their property and ruled in favor of the county. The plaintiffs appealed and the Appellate Court upheld the ruling in favor of the county that the road was public.

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7th Circuit Upholds Dismissal of Unsuccessful Candidate's Civil Rights Lawsuit

7th Circuit Upholds Dismissal of Unsuccessful Candidate's Civil Rights Lawsuit

  Tuesday, July 25, 2023    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently upheld the dismissal of a lawsuit filed by a candidate for a States Attorney office against various public officials claiming that their actions violated his civil rights. Reardon v. Danley et al.

Reardon ran for States Attorney in Coles County against the incumbent, one of the defendants. After he lost the election, he filed a lawsuit that included the following claims: (1) seeking an injunction against the release of certain Facebook account information that was the subject of a subpoena issued by the Mattoon Police Department, which subpoena had been upheld by a circuit court judge; (2) that a county board member violated his First Amendment rights by removing one of his campaign signs from a resident's lawn a few weeks before the election; and (3) that the Police Chief and City violated his First Amendment rights when the Chief endorsed his opponent on the City's Facebook page.

The Court of Appeals rejected all of Reardon's claims and upheld the district court's dismissal of his case. First, the Court held that injunctive relief was not an appropriate civil rights remedy to stop the release of the subpoenaed records. Second, the Court held that Reardon failed to demonstrate how the county board member was acting under any authority of the county or in furtherance of his county board member role when he removed the campaign sign. Finally, the Court held that Reardon failed to show how the Chief's Facebook post violated any of his constitutional rights. 

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