PAC Issues 8th Binding Opinion of 2019 Finding Police Department in Violation of FOIA

PAC Issues 8th Binding Opinion of 2019 Finding Police Department in Violation of FOIA

  Monday, September 30, 2019    Julie Tappendorf

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After a relatively quiet summer, the Public Access Counselor (PAC) in the Office of the Illinois Attorney General issued its 8th binding opinion this year. In PAC Op. 19-008, the PAC found a police department in violation of FOIA when it redacted portions of its police reports.

A news reporter submitted a FOIA request to a city police department (“PD”) seeking police reports concerning the arrests of two individuals. The PD subsequently provided him copies of the records, which consisted of two case reports and six officer supplement reports related to two different case numbers. The PD had redacted certain information from those records pursuant to Sections 7(1)(b) (private information), 7(1)(c) (unwarranted invasion of personal privacy), 7(1)(d)(iii) (deprivation of fair trial or impartial hearing), and 7(1)(d)(iv) (disclosure of confidential sources or witnesses) under FOIA. 

The requester submitted a Request for Review contesting the PD’s redactions of the narrative sections in each of the police reports. In response to the Request for Review, the PD supplemented its exemptions by also citing 7(1)(a) (disclosure prohibited by other law), alleging some of the information was exempt under Illinois Supreme Court Rule 415(c). Rule 415(c) provides:

“[a]ny materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to such other terms and conditions as the court may provide.”

The PD asserted that the request sought information used in criminal cases in the Will County Circuit Court, and that the Will County State’s Attorney’s Office objected to release of this information . The PD also asserted that disclosure of the information would interfere with discovery in pending cases in Will County.

On September 24, 2019, the PAC issued its binding opinion making findings on each of the PD's cited exemptions for the redactions, as follows:

7(1)(a): The PD failed to meet its burden in claiming this exemption. The PAC found that there was no legal precedence to support withholding records under Supreme Court Rule 415(c). Further, there is no provision of FOIA that renders records exempt from disclosure on the basis of another public body objecting to their disclosure.

In a footnote, the PAC did state that the PD could redact any information present in the records that is contained in the Law Enforcement Agencies Data System (LEADS) since the Illinois Administrative Code expressly precludes the public from viewing or possessing such information.

7(1)(b): The PD failed to meet its burden in claiming this exemption, in part. The PAC found that the PD properly redacted several types of “unique identifiers” in the narrative sections of the police reports, including home or personal telephone numbers, a motor vehicle license number, and a home address. But, the PD improperly redacted the rest of the narrative sections in the police reports as the rest of the information did not fall within the plain language of this FOIA provision.

7(1)(c): The PD failed to meet its burden in claiming this exemption, in part. The PAC found that the PD improperly redacted information based on "invasion of personal privacy" because (1) it failed to provide an adequate factual basis for withholding the information, and (2) the legitimate public interest in inspecting the information concerning the investigations and arrests outweighed the arrestees’ privacy rights.

The PAC did state, however, that the PD could redact: (1) birth dates, and (2) information identifying a suspect of a crime who has not been arrested or charged in the police reports.

7(1)(d)(iii): The PD failed to meet its burden in claiming this exemption. The PAC found that the PD failed to set forth specific facts to show that the disclosure of the information would create a substantial likelihood that the arrestees would be deprived of a fair trial or an impartial hearing.

The PAC discounted the PD’s assertion of Section 7(1)(d)(iii) because the requested records concerned individuals who were arrested just days before the FOIA request was submitted. At the time of the FOIA request, there was no indication that a trial or adjudication was pending or truly imminent at that time.

7(1)(d)(iv): The PD failed to meet its burden in claiming this exemption, in part. The PAC found that the PD failed to articulate facts to support the redaction of all the information in the narratives relating to the actual witness statements. The redactions were, in part, improper because (1) some of the withheld information did not fall within the scope of Section 7(1)(d)(iv), and (2) this Section does not encompass information provided by criminal suspects under questioning by law enforcement.

The PAC did allow the PD to redact (1) the names of two witnesses under Section 7(1)(d)(iv), and (2) information that would identify any undercover officers pursuant to Section 7(1)(d)(vi).

Post Authored by Ashton Tunk & Julie Tappendorf

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Upcoming APA Webinar: Gentrification, Displacement and the Law

Upcoming APA Webinar: Gentrification, Displacement and the Law

  Friday, September 27, 2019    Julie Tappendorf

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The American Planning Association will be presenting a webinar on October 10th on "Gentrification, Displacement, and the Law. A description of the webinar and information about registration is below:

Thursday, October 10, 2019 

2:30 p.m. - 4:00 p.m. CT

CM 1.50 Law

CLE 1.50 through Illinois State Bar

Gentrification is one of the complex planning challenges of our times, but the legal limits on how local communities can respond to these pressures are often unclear. While there is no shortage of well-meaning ideas about how to slow the gentrification process or mitigate its impacts, some of those ideas may not be legal, and others could have significant unintended consequences. This webinar will review those laws that impose obligations to protect America's citizens against some forms of pressure and discrimination, as well as those that prohibit certain local government actions. This review will include the Community Reinvestment Act, the Fair Housing Amendments Act, and the Americans with Disabilities Act, and constitutional limits on interference with contracts or the fundamental right to buy and sell property. However, the real action on gentrification is at the local level, so panelists will also review selected municipal laws and policies. 

You can register for the webinar on the APA's website here.

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Village's Sign Ordinance Did Not Violate First Amendment

Village's Sign Ordinance Did Not Violate First Amendment

  Wednesday, September 25, 2019    Julie Tappendorf

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This week, the Seventh Circuit Court of Appeals upheld a local ordinance regulating the size and location of signs against a First Amendment challenge.  Leibundguth Storage & Van Servce, Inc. v. Village of Downers Grove. 

The Village has a comprehensive sign ordinance that regulates, among other things, the size and location of signs in the Village. One regulation prohibits "any sign painted directly on a wall." Leibundguth has a wall sign that would fall into this prohibition (see below). 

Leibundguth filed a lawsuit challenging the Village's sign ordinance on the basis that it contained "content-based" exceptions for political signs, holiday decorations, and temporary signs that violated the First Amendment based on the U.S. Supreme Court's decision in Reed v. Gilbert. The court, however, did not agree with that argument, finding that Leibundguth's problems with the ordinance related to the size and surface limits and not content-based distinctions in the ordinance. Specifically, one of the signs was painted on the wall , another sign was too large, and a third wall contained two signs where only one was allowed by ordinance. In addition, the total amount of signage for the business exceeded 500 square feet, in excess of the 159 square feet allowed for that building. 

The Seventh Circuit ruled that the sign ordinance limitations on the size and presentation/location of signs were standard "time, place, and manner" regulations, a permissible form of zoning. The Village's rationale for these regulations (aesthetics) was not unreasonable or arbitrary, and the ordnance leaves plenty of alternative avenues of communication. In sum, the Village's sign ordinance did not violate the First Amendment.

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Facebook Establishes Oversight Board to Advise on User Activity

Facebook Establishes Oversight Board to Advise on User Activity

  Tuesday, September 24, 2019    Julie Tappendorf

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If you hadn't heard, there was an interesting development out of Facebook last week when the company announced the establishment of an "Oversight Board" that would have authority to make final decisions about certain user posts that Facebook removes, among other issues. The Board will be governed by a charter and by-laws that would establish the structure of the Board and define the scope of its powers.

According to Facebook, one of the purposes of establishing the board is to address some of the more significant and difficult cases of user activity on the platform. Facebook has identified guidelines to prioritize these cases that focus on indicators on user activity that Facebook considers to have "significance" or "difficulty," which Facebook has defined as follows:

• Significance: Significant means that the content involves real-world impact. The content in question should involve issues that are severe, large-scale and important for public discourse. Factors include:
  • Severity. The content threatens someone else’s voice, safety, privacy, or dignity.
  • Scale. The content reaches or affects a large number of people and/or illustrates a larger trend or issue on Facebook.
  • Public Discourse. The content spurs significant public debate and/or important political and social discourse.
• Difficulty: The decision on the content raises questions about current policy or its enforcement. Strong arguments could be made for either removing or leaving up the content. Factors include:
  • Disputed. There is disagreement about Facebook’s decision on the content and/or the underlying policy or policies.
  • Uncertain. There is uncertainty about the correct decision according to Facebook’s policy.
  • Competing. There is a tension between equally important values. A reasonable person could imagine both arguments to remove the content or keep it up, and a decision either way necessitates a trade-off between values.

You can read more about Facebook's new initiative on its website here. It will be interesting to follow the implementation and see how this might impact government use of social media which, of course, is subject to a completely different legal landscape - the First Amendment.

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PAC Addresses "Open and Convenient" Requirement of the OMA

PAC Addresses "Open and Convenient" Requirement of the OMA

  Monday, September 23, 2019    Julie Tappendorf

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Thanks to one of our readers, we recently were forwarded a non-binding Public Access Counselor opinion (2019 PAC 58076) that looked at whether a city council took sufficient measures to make some of its meetings accessible to the public pursuant to the "open and convenient" requirement under Section 2.01 of the Open Meetings Act.

Media outlets reported that after a local election, an Illinois city would discuss the qualifications of its Mayor-Elect during its April 22, 2019 council meeting. Specifically, the city council planned to discuss whether the Mayor-Elect met the residency requirements. At that meeting, however, the city council recessed the meeting prior to any discussion of the Mayor-Elect when the council learned the Mayor-Elect could not attend the initial meeting. The meeting reconvened the following evening.

The April 23, 2019 meeting was held at its usual location, in council chambers. The city council stated that it typically had seating for 49 members of the public, although average attendance did not exceed 20. The council anticipated that turnout would be higher for both meetings based on the public’s interest of the Mayor-Elect’s qualifications for office, so it supplied 103 chairs and allowed additional attendees to stand at the back of the chambers. Attendance on both nights reached the chambers’ maximum capacity, and some attendees had to temporarily wait in line outside of the chambers until other individuals left to gain access to the meeting.

One member of the public filed a request for review with the PAC alleging that the city council violated the OMA by improperly denying access to members of the public who wanted to attend the April 23, 2019 meeting because the meeting location reached its maximum capacity. The city council responded that the city’s fire chief did not turn any member of the public away or tell any attendee that they could not attend the meeting. The council further argued that at both meetings, members of the public were eventually permitted access.

In its July 31, 2019 determination letter, the PAC concluded that the city council did not violate the accessibility requirements of the OMA. The PAC reasoned that the city council only was required to provide reasonable access – not absolute access. The PAC noted that the council took reasonable steps to provide access by more than doubling the amount of seating in anticipation of a larger-than-usual turnout at the meetings, and that the council allowed other attendees to stand in the back of the chambers.

When anticipating increased turnout at a public meeting, local governments should remember to take all steps necessary to provide members of the public reasonable access. That may require bringing in additional seating, relocating the meeting to a larger venue, setting up additional rooms or areas where members of the public can watch live-streamed proceedings and still participate in public comment, or other steps to provide reasonable access.

Post Authored by Ashton Tunk & Julie Tappendorf, Ancel Glink

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Court Orders Public Release of Records Relating to Police Shooting of a Minor

Court Orders Public Release of Records Relating to Police Shooting of a Minor

  Wednesday, September 11, 2019    Julie Tappendorf

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Last week, the First Circuit decided NBC Subsidiary (WMAQ-TV) LLC v. Chicago Police Department, a case addressing FOIA and the confidentiality provisions of the Juvenile Court Act (JCA).

In July 2014, Chicago Police Department police officers fatally shot a 16-year-old after he pointed a firearm at the officers on numerous occasions. There were several witnesses to the shooting, and the independent police review board in Chicago subsequently released basic details of the incident including the minor’s name, the date and time of the incident, and the type of incident. In January 2016, WMAQ filed a FOIA request with the CPD, requesting “all police reports, case reports, case incident reports and supplemental reports filed in the police shooting.” CPD denied the request arguing that the JCA barred disclosure of these records to WMAQ as it was not an “authorized party” entitled to access of the records. After CPD denied the FOIA request, WMAQ filed a request for review with the Public Access Counselor (PAC).

In February 2016, the PAC issued a nonbinding determination letter that concluded the CPD violated FOIA by withholding records concerning the investigation into the police shooting death of the minor. The PAC stated that the CPD had to disclose records that involved the investigation into whether the homicide of the minor was justifiable.

The CPD did not produce the records and WMAQ filed suit, seeking disclosure of all reports filed in the matter. The circuit court ruled in WMAQ’s favor, holding that the JCA’s prohibitions against unauthorized disclosure did not apply to the records of the investigation of the conduct of the police officers involved in the shooting of the minor.

On appeal, CPD asserted that the plain language of the JCA prohibited the disclosure of the requested records because WMAQ did not obtain a court order, and because the records were confidential since the victim of the shooting was a minor.

The Appellate Court ruled in favor of WMAQ and ordered release of the records. The Court rejected the CPD’s interpretation of the JCA as too broad since the purpose of the JCA is to protect the privacy of minors and not to shield alleged misconduct of public employees from public view. The Court stated that WMAQ was not required to obtain a court order to review the records because the records related to the investigation of police officers and did not relate to “the investigation, arrest, or custodial detention” of the minor in this case - an essential basis for confidentiality under the JCA. Finally, the Court rejected the CPD’s argument that the records of the independent police review board were wholly exempt from disclosure because the Act was amended in 2009 to provide independent agencies who investigate police conduct access to law enforcement records that relate to minors who have been investigated, arrested, or detained in custody.

Post Authored by Ashton Tunk & Julie Tappendorf, Ancel Glink

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New Quorum Forum Podcast Episode Released: Nice Meeting U!

New Quorum Forum Podcast Episode Released: Nice Meeting U!

  Monday, September 09, 2019    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast Episode 28 was just released: Nice Meeting U!

In this episode, the Quorum Forum podcast is heading back to school at Nice Meeting University! Ancel Glink’s Stewart Diamond teaches us about rules for good local government meetings, while Ashton Tunk covers Open Meetings Act news. We also study hard seltzer consumers' claims of immunity from statutes and local ordinances, based on the theory "there ain't no laws when you're drinking claws." 

What tips do you have for good local government meetings? Email us at podcast@ancelglink.com!

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer: ancelglink.com/disclaimers

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Seventh Circuit Upholds Cook County's Assault Weapon Ban

Seventh Circuit Upholds Cook County's Assault Weapon Ban

  Wednesday, September 04, 2019    Julie Tappendorf

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Last week, the Seventh Circuit Court of Appeals upheld Cook County, Illinois' assault weapon ban against a Second Amendment challenge. Wilson v. Cook County, (7th Cir., August 29, 2019).

In 2006, Cook County adopted an ordinance making it illegal to "manufacture, sell, offer or display for sale, give, lend, transfer ownership of, acquire, carry or possess" an assault weapon or large-capacity magazine in Cook County. Shortly after enactment of the ordinance, three county residents sued the county claiming that the ordinance violated various provisions of the U.S. constitution and exceeded the county's police powers. The Illinois Supreme Court dismissed most of these claims, but remanded the Second Amendment claim. The plaintiffs voluntarily dismissed the case at that time.

In 2015, the City of Highland Park enacted its own ban on assault weapons and large-capacity magazines which was also challenged on constitutional grounds. The Seventh Circuit Court of Appeals upheld that ordinance in 2015 in the case of Friedman v. City of Highland Park.

In 2017, two Cook County residents refiled their lawsuit against Cook County, including their previously dismissed due process and equal protection claims and the Second Amendment claim. The case was removed to federal court where it was dismissed by the district court. 

On appeal, the Seventh Circuit Court of Appeals reviewed the claims in light of its decision in the Friedman case involving the challenge to Highland Park's ordinance. The Seventh Circuit first noted that the Cook County ordinance was nearly identical to the Highland Park ordinance that the court had previously upheld. Second, the Court rejected the residents' argument that the Friedman case should be reconsidered, finding that its earlier ruling was still valid. Specifically, the Court determined that an assault weapons ban does not offend the Second Amendment because it does not leave residents without a means of self-defense. Third, the Court held that the U.S. Supreme Court's decision in Heller that struck down D.C.'s firearm ban, finding that an assault weapon ban is not "as sweeping as the complete handgun ban at issue in Heller." 

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Illinois Adopts Single Occupancy Restroom Law

Illinois Adopts Single Occupancy Restroom Law

  Tuesday, September 03, 2019    Julie Tappendorf

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The Illinois General Assembly recently amended the Equitable Restrooms Act to address single-occupancy restrooms. P.A. 101-0165. Effective January 1, 2020, all single-occupancy restrooms in any "place of public accommodations" and any "public building" must be identified as all-gender and marked with exterior signage that does not indicate any specific gender.  

This new law applies to "public buildings," which is not defined in this statute. It appears, however, that the new requirement will affect units of local government throughout the state that have single-occupancy restrooms in their government buildings. It is not clear whether the new requirements apply to all restrooms in a public building (including those in employee-only areas) or only to those restrooms that are made available to the public. We may get more clarity on how this law will be interpreted when administrative regulations are issued by the Department of Public Health, as required by the new law.

It is also important to note that this law is not restricted to only new construction or renovations, as indicated in section 20 of the new law. That means local governments should begin evaluating the need for modified or updated signage in their public buildings over the next few months to ensure compliance by January 1st.

The text of the new law is below:

    Section 5. The Equitable Restrooms Act is amended by changing Section 20 and adding Section 25 as follows:

 (410 ILCS 35/20)  (from Ch. 111 1/2, par. 3751-20)                    

    Sec. 20. Application. Except for Section 25, this This Act applies only to places of public accommodation that commence construction, or that commence alterations exceeding 50% of the entire place of public accommodation, after the effective date of this Act.

    (410 ILCS 35/25 new) 

    Sec. 25. All-gender single-occupancy restrooms. 

    (a) In this Section:

    "Place of public accommodation" has the same meaning provided in Section 5-101 of the Illinois Human Rights Act. 

    "Single-occupancy restroom" means a fully enclosed room, with a locking mechanism controlled by the user, containing a sink, toilet stall, and no more than one urinal.

    (b) This Section applies to any existing or future places of public accommodation or public buildings.

     (c) Notwithstanding any other provision of law, every single-occupancy restroom in a place of public accommodation or public building shall be identified as all-gender and designated for use by no more than one person at a time or for family or assisted use. Each single-occupancy restroom shall be outfitted with exterior signage that marks the single-occupancy restroom as a restroom and does not indicate any specific gender. 

    (d) During any inspection of a place of public accommodation or public building by a health officer or health inspector, the health officer or health inspector may inspect the place of public accommodation or public building to determine whether it complies with this Section.  

    (e) The Department of Public Health shall adopt rules to implement this Section.

Section 99. Effective date. This Act takes effect January 1, 2020.                   

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Open Meetings Act "Personnel" Exemption Expanded

Open Meetings Act "Personnel" Exemption Expanded

  Wednesday, August 28, 2019    Julie Tappendorf

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HB 2124 (proposing amendments to the Open Meetings Act) became effective last Friday. That legislation amends the OMA to allow a public body to go into closed session to discuss the hiring, firing, compensation, discipline, and complaints against specific individuals who serve as independent contractors in a park, recreational, or educational setting and specific volunteers under the "personnel" exemption under the OMA. 

Public bodies should remember that the PAC office of the Illinois Attorney General expects that public bodies using this exemption to go into closed session provide more detail in their motion that simply stating "personnel exemption." While the motion need not name the individual, it should provide a bit more detail, such as why the individual will be discussed (i.e., hiring, termination, etc). 

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Appellate Court Addresses Prisoner FOIA Use

Appellate Court Addresses Prisoner FOIA Use

  Tuesday, August 27, 2019    Julie Tappendorf

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Last week, an Illinois appellate court upheld a circuit court's ruling that an inmate was not entitled to home addresses of other individuals under FOIA in an unpublished opinion.

In Serio v. Putnam Cnty. Sheriff’s Dept., Raymond Serio, an inmate of the Illinois Department of Corrections, sent two FOIA requests to the Putnam County Sheriff’s Department seeking specific information regarding individuals that had been booked into custody at the Putnam County jail. He asked for the name, age, full address, offense, date of arrest, and photos of each individual under Section 2.15(a) of FOIA. The Sheriff’s Department subsequently provided Serio the records he requested in part in response to both FOIA requests, but withheld the home addresses under Section 7(1)(b), which protects home addresses from release as "private information."

Serio sued, arguing that the Sheriff’s Department (1) willfully and intentionally failed to comply with his FOIA requests, (2) should be ordered to release the home addresses, and (3) should pay civil penalties and Serio’s costs of filing the lawsuit. The Sheriff’s Department reasserted its use of the "private information" exemption to bar disclosure of the addresses. The trial court ruled in favor of the Sheriff’s Department and denied Serio’s claim for relief. Serio appealed.

On appeal, Serio argued that the plain language of FOIA expressly provided for obtaining that information if it is included in arrest reports. This time, the Sheriff’s Department argued that Section 7(1)(e-10) of FOIA barred the disclosure. At the time of the trial court’s ruling, the exemption in Section 7(1)(e-10) had not yet been enacted.  This section exempts from FOIA the following:

  (e-10) Law enforcement records of other persons requested by a person committed to the Department of Corrections, Department of Human Services Division of Mental Health, or a county jail, including, but not limited to, arrest and booking records, mug shots, and crime scene photographs, except as these records may be relevant to the requester's current or potential case or claim.

The appellate court determined that the Sheriff’s Department’s use of this exemption was proper and that it could withhold the home addresses. The court reasoned that although Section 7(1)(e-10) became effective after the trial court ruling, it applied retroactively as the legislature did not expressly state otherwise, and because it was a procedural change to FOIA rather than a substantive change that would preclude Serio from exercising his rights under the statute. Finally, Serio failed to explain in both his complaint and FOIA requests how the information he requested was relevant to “his current or potential case or claim” as required by Section 7(1)(e-10).

Post Authored by Ashton Tunk & Julie Tappendorf

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7th Circuit Upholds Construction Licensing Ordinance

7th Circuit Upholds Construction Licensing Ordinance

  Monday, August 26, 2019    Julie Tappendorf

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Earlier this week, the Seventh Circuit Court of Appeals upheld an Indiana city's ordinance requiring a residential property owner who wants to make repairs to the residence either to obtain a license or to hire a licensed contractor. Regan v. City of Hammond.

Christopher Regan and the Northwest Indiana Creative Investors Association, Inc. were landlords who own and lease property in the City of Hammond. As property owners, they made periodic repairs and improvements to their properties. Before they could make improvements to their properties, however, they were required by city ordinance to either obtain a license or hire a Hammond-licensed general contractor. The code also makes an exception for persons making repairs or improvements to their own private, single-family residences in which they reside. Because the plaintiffs do not reside in their respective properties, they did not fall under this exception and were required to obtain a license or hire a licensed contractor.

In their lawsuit against the City of Hammond, the plaintiffs argued that the license requirements coupled with the exemption impermissibly burdened property owners who do not reside in the City, thus impeding "interstate commerce." They also argued that all owners of residential property in Hammond are participants and competitors in the national housing market, and that giving an occupant homeowner an exemption from the license requirement would discriminate against the non-occupant homeowner and landowners who are not domiciled in Hammond.

The Seventh Circuit rejected the plaintiffs' arguments, finding that the ordinance does not discriminate based on the where a homeowner lives. In its reasoning, the court explained that commerce clause analyses fall into three categories: laws that expressly discriminate against interstate commerce; laws that, although neutral on their face, bear more heavily on interstate than local commerce; and laws that may have a mild effect on interstate commerce but in practice do not give local firms any competitive advantage over firms located elsewhere. Because the ordinance draws no distinction between landlords that reside in Hammond and those who do not, the court concluded that the ordinance does not impose a disparate burden on non-Hammond landlords.

The court reasoned that the distinction rested on occupancy, which was a rational distinction considering occupants of residential property are more closely affected by property defects and repairs than that of the removed landlord. Furthermore, the court concluded that Hammond has an interest in the safety and habitability of the homes in which its residents reside, and the ordinance is a permissible exercise of its authority to promote that interest.

Although this case dealt with an Indiana municipality, the holding that this type of ordinance does not offend the commerce clause of the U.S. Constitution would also appear to apply to Illinois municipalities as well.

Post Authored by Rain Montero & Julie Tappendorf

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