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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 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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