Summary of 2023 Binding PAC Opinions (OMA)

Summary of 2023 Binding PAC Opinions (OMA)

  Wednesday, December 27, 2023    Julie Tappendorf

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Following our earlier summary of the 2023 PAC binding opinions on FOIA, today we focus on the PAC’s four binding opinions issued on OMA matters in 2023, which are linked below.

PAC Op. 23-014 (no final action in closed session)

In PAC Op. 23-014, the PAC determined that a public body voting to approve its closed session meeting minutes from a prior board meeting in closed session violated the OMA because it constituted a “final action” that public bodies are prohibited from taking in closed session. The PAC rejected the argument that OMA section 2(c)(21) authorizes approving closed session minutes in closed session, noting that this section only allows a discussion of whether to approve closed session minutes, but does not authorize final action on those minutes, which must be taken in open session under an agenda item that identifies the final action to be taken.

PAC Op. 23-013 (improperly restricting public comment on personnel matters)

In PAC Op. 23-013, the PAC concluded that a public body violated the OMA by restricting the content of a public comment about the board’s hiring policy. 

PAC Op. 23-004 (requirement to state general subject matter of item subject to final action)

In PAC Op. 23-004, the PAC found that a public body violated the OMA by failing to indicate the general subject matter on the agenda of the proposed final action on a severance agreement after the public body returned from executive session. 

PAC OP. 23-003 (improper meeting)

In PAC Op. 23-003, the PAC determined that a public body violated the OMA by holding an improper meeting without posting advance notice of the meeting and complying with other OMA requirements. Specifically, the PAC found that an informal “Meet and Greet” gathering that was attended by a majority of a quorum of a board to collect information and answer questions from staff on substantive public business matters qualified as a “meeting” under the OMA, even if no formal action was taken by the board at the gathering.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Summary of 2023 Binding PAC Opinions (FOIA)

Summary of 2023 Binding PAC Opinions (FOIA)

  Tuesday, December 19, 2023    Julie Tappendorf

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It's that time of year when we close out 2023 with a summary of the binding opinions issued by the Illinois Attorney General's Public Access Counselor's office (PAC). To-date, the PAC has issued 15 binding opinions, which are all published on the Attorney General's website. Today, we will focus on the PAC’s 9 binding opinions on FOIA.

PAC Op. 23-001, PAC Op. 23-011, PAC Op. 23-012 (failure to respond to FOIA requests)

In binding opinions PAC Op. 23-001, PAC Op. 23-011, and PAC Op. 23-012), the PAC found that several public bodies violated FOIA by failing to respond to FOIA requests. 

PAC Op. 23-002 (employee survey results)

In PAC Op. 23-002, the PAC found that a public body properly denied a FOIA request seeking certain employee survey results used in connection with preparing performance evaluations for staff members pursuant to FOIA section 7(1)(f). 

PAC Op. 23-007 (request improperly denied as unduly burdensome)

In PAC Op. 23-007, the PAC determined that a public body improperly denied a categorical FOIA request for emails as unduly burdensome. The PAC found that the city’s insistence that the requester identify specific employees or email addresses was unreasonable, because the city was required to make “judgment calls” to identify specific employees whose emails are reasonably likely to contain responsive records since the public body is in a better position than members of the public to know which employees are likely to have sent or received emails on a particular subject. 

PAC Op. 23-008 (request improperly classified as commercial request)

In PAC Op. 23-008, the PAC found that a public body violated FOIA by improperly categorizing a FOIA request as a commercial request and imposing an improper "review" fee. 

PAC Op. 23-009 (public body employee arrest and conviction record)

In PAC Op. 23-009, the PAC determined that a public body violated FOIA by withholding police reports concerning a teacher who was arrested and convicted of a crime against a minor victim. The PAC disagreed with the police department’s claim that the entire report was exempt from disclosure because of the risk of disclosing the minor's identity.

PAC Op. 23-010 (juvenile law enforcement records)

In PAC Op. 23-010, the PAC found that a public body did not violate FOIA by withholding arrest report in its entirety that involved a minor arrestee, even though the report also included information about an adult arrestee. Because the police report at issue involved the investigation of multiple minors and charges against one minor, the PAC determined that the record was a “juvenile law enforcement record” under the Juvenile Court Act (JCA), which are confidential and prohibited from being disclosed except to certain authorized parties.

PAC Op. 23-015 (non-disclosure agreement)

In PAC Op. 23-015, the PAC found that a city violated FOIA by withholding a non-disclosure agreement between the city and a private developer concerning a development project from disclosure pursuant to FOIA exemption 7(1)(g) which protects trade secrets or other confidential information that would cause competitive harm if disclosed. 

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

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PAC Finds that NDA for Development Project Was Not Exempt from FOIA

PAC Finds that NDA for Development Project Was Not Exempt from FOIA

  Thursday, December 14, 2023    Julie Tappendorf

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A reporter submitted a FOIA request to a municipality seeking a non-disclosure agreement between the city and a private company concerning a development project. The city denied the request citing FOIA exemption 7(1)(g). After the requestor submitted a request for review to the PAC, the PAC issued a binding opinion finding that the city violated FOIA when it withheld the NDA. PAC Op. 23-015.

Section 7(1)(g) of FOIA exempts certain records from disclosure that contain:

1. a trade secret, commercial, or financial information, 
2. that was obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are either (a) proprietary, (b) privileged, or (c) confidential, and 
3. that disclosure of the trade secrets or commercial or financial information would cause competitive harm to the person or business.

The PAC found that the NDA satisfied the first two elements because the NDA contained commercial information relating to a commercial project and it contains a clause providing that the existence of the agreement is confidential. However, the PAC determined that the city and company failed to set forth specific facts or evidence to demonstrate how disclosure of the NDA could reasonably be expected to result in competitive harm to the company, much less that it would cause harm. The PAC found that the NDA primarily consisted of boilerplate language setting forth the parameters for confidentiality but did not reveal information about sensitive matters, including the company’s business strategies, expenses, or revenues, or details concerning plans for the proposed development project.

The PAC also determined that the fact that the company had customarily and actually treated commercial information in the NDA as private and confidential in the past did not provide an independent basis for the city to withhold the record under FOIA section 7(1)(g).

The city also argued that disclosing the NDA would deter businesses from entering into future public-private partnerships with the city because of the risk that competitors would use that information for their own competitive purposes. The PAC rejected that argument, finding that the potential for competitive harm on this basis was not present in this matter because the company had issued a public press release concerning the development nine days before the FOIA request was submitted, so release of the NDA would not have been the first disclosure of the existence of the development project. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Court Dismisses Challenge to City Business License Denial

Court Dismisses Challenge to City Business License Denial

  Wednesday, December 13, 2023    Julie Tappendorf

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An Illinois Appellate Court ruled in favor of a city in a lawsuit involving a business owner challenging the city's denial of a business license, finding that the owner had not exhausted its administrative appeals. Mary Jane Sweet Spot LLC v. City of Blue Island

In this case, an owner filed for a business license to operate a small bakery. The city clerk discovered that before the owner obtained its business license and other approvals, including a liquor license, the owner had thrown a large gathering at its future business address and was planning to throw another large gathering, with alcohol, which violated city code. Based on these actions and misstatements of the scope of the business on the license application, the city denied the business license application. The owner appealed the denial at an administrative hearing, where the administrative hearing officer issued a decision recommending that the city council uphold the denial of the license. The owner did not, however, take the appeal to the city council and instead filed a lawsuit against the city. 

The Appellate Court determined that the owner failed to exhaust its administrative remedies before filing the lawsuit. The city code included language providing for an appeal of a business license denial before the city council. The owner appealed the city's denial of the license to the city's administrative hearing officer who recommended the city council uphold the denial of the business license. The owner then filed a lawsuit, but never actually appealed to the city council. Because the owner did not complete all of its opportunities for administrative relief, the Appellate Court dismissed the lawsuit as premature.

Post Authored by Daniel Lev, Ancel Glink

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Illinois Supreme Court Dismisses Class Action Challenging Parking Ticket Policy

Illinois Supreme Court Dismisses Class Action Challenging Parking Ticket Policy

  Tuesday, December 12, 2023    Julie Tappendorf

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The Illinois Supreme Court recently dismissed a class action lawsuit challenging the City of Chicago's parking ticket citation practice in the downtown central business district (CBD). Pinkston v. City of Chicago

The City of Chicago imposed two different fines for expired parking meters depending on whether a car was parked within or outside its CBD, and fines were larger within the CBD. A driver was given an expired meter ticket with a CBD fine despite being parked further south than the CBD’s southernmost boundary. The driver paid the fine, without contesting the ticket, but then later filed a lawsuit. The lawsuit, which was filed on behalf of all who had been ticketed, claimed that the City had a routine practice of issuing tickets (over 30,000 of them) imposing CBD parking fines to cars parked outside the CBD boundaries. The circuit court dismissed the lawsuit and the driver appealed. On appeal, the appellate court reversed the trial court, sending the case back for further proceedings.

The case eventually made its way to the Illinois Supreme Court, which dismissed the case for failure to exhaust administrative remedies because the citations were not challenged through an administrative appeal process before the class action lawsuit was filed. The Court also determined that since the driver did not challenge his own ticket, there was no determination that the driver’s ticket was improperly written, so the driver could not establish his right to represent the class. The Supreme Court rejected the driver's argument that the nature of the lawsuit as a class action exempted it from the "exhaustion of remedies" doctrine. 

Post Authored by Daniel Lev, Ancel Glink

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Ancel Glink's Quorum Forum Podcast Episode 78: New Laws for the New Year

Ancel Glink's Quorum Forum Podcast Episode 78: New Laws for the New Year

  Monday, December 11, 2023    Julie Tappendorf

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Ancel Glink has released its year-end Quorum Forum Podcast Ep. 78: New Laws for the New Year. In this episode, Ancel Glink attorneys review case law and legislation that our local government listeners should know for 2024. 

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PAC Finds Public Body in Violation of OMA for Approving Closed Session Minutes in Closed Session

PAC Finds Public Body in Violation of OMA for Approving Closed Session Minutes in Closed Session

  Tuesday, December 05, 2023    Julie Tappendorf

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The Illinois Attorney General's Public Access Counselor (PAC) issued its 14th binding opinion of 2023 finding a public body in violation of the OMA for taking final action to approve closed session meeting minutes in closed session. PAC Op. 23-014.

A trustee filed a complaint with the PAC alleging that his board voted to approve the closed session meeting minutes of a prior board meeting while in closed session in violation of the OMA. According to the PAC opinion, the board took a vote on the minutes in closed session but did not take any action in open session to approve the closed session minutes. The PAC determined that the vote in closed session to approve the closed session meeting minutes constituted "final action" that section 2(e) of the OMA provides cannot be taken in closed session.

The PAC rejected the public body's argument that section 2(c)(21) of the OMA (reprinted below) expressly authorizes approval of the minutes in closed session, finding that this section only allows discussion of whether the public body will approve the minutes but it does not authorize final action on those minutes which, the PAC said, must be taken in open session under an agenda item that identifies the final action to be taken. The PAC directed the board to include the closed session meeting minutes on its next board meeting agenda for approval in open session.

(21) Discussion of minutes of meetings lawfully closed under this Act, whether for purposes of approval by the body of the minutes or semi-annual review of the minutes as mandated by Section 2.06.

Although not raised in the trustee's complaint, the PAC also noted that the board failed to cite to the above-referenced OMA section when it went into closed session and also did not include a reference to the approval of closed session meeting minutes on the agenda for this meeting.

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Person's Own FOID Card Records Not Releasable Under FOIA

Person's Own FOID Card Records Not Releasable Under FOIA

  Monday, December 04, 2023    Julie Tappendorf

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Two individuals submitted separate FOIA requests to the Illinois State Police (ISP) seeking records relating to their own Firearm Owners’ Identification (FOID) cards. ISP denied both requests, citing FOIA exemption 7.5(v), which exempts from disclosure the names and information of people who have applied for or received FOID cards under the Firearm Owner’s Identification Card Act. Both requesters then sued ISP, claiming it denied their FOIA requests in violation of FOIA. The circuit court and the Appellate Court ruled in favor of the requesters, finding the requested records were not exempt from disclosure because the requesters were seeking their own FOID records, and ordered ISP to disclose each requester's FOID card application and ISP’s FOID card revocation letters previously sent to the requesters.

On appeal, the Illinois Supreme Court reversed and ruled in favor of the ISP, finding that FOIA section 7.5(v) is a blanket exemption prohibiting the disclosure of all FOID card information under FOIA, with no exception for requesters who seek their own information. The Supreme Court also rejected the Appellate Court’s argument that an individual may consent to the disclosure of their own FOID card information. Because there is no federal or state law that requires ISP to disclose the requested FOID information, the plaintiffs could not consent to the disclosure of otherwise exempt private FOID card information. Hart v. Illinois State Police.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Court Upholds Road Impact Fees Imposed Through IGA and Annexation Agreement

Court Upholds Road Impact Fees Imposed Through IGA and Annexation Agreement

  Thursday, November 30, 2023    Julie Tappendorf

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An Illinois Appellate Court recently validated an intergovernmental agreement (IGA) that required the municipalities subject to the IGA to require, as a condition of annexation, that developers pay impact fees for road improvements and determined that a developer was required to pay the fees. Habdab v. Lake County.

In 2009, Mundelein (Village), Lake County (County), and two other municipalities entered an IGA to provide for construction funding for highway improvements that would serve each municipality. The IGA required that half of the costs of the improvements be paid by the public and the other half be paid by impact fees on future developers who build near the improvements. The fee amounts were calculated depending on the size and location of each parcel. The IGA required the municipalities to require that developers proposing to annex property into the municipality to enter into annexation agreements that would include provisions stating that a developer’s plans would not receive final zoning approvals until the required impact fees were collected.

In this case, a developer purchased various parcels within the highway improvement areas of the Village. Neither the annexation agreement nor its amendments included provisions requiring the developer to pay the road impact fees although two of the agreements included language that the developer did not agree to pay the fees. When the Village and County tried to collect the impact fees, the developer filed a lawsuit to avoid payment. The circuit court ruled in favor of the Village and County finding the developer was responsible to pay the road impact fees.

On appeal, the developer argued the following: 

(1) the road impact fees violated state statute, specifically, the Impact Fee Law; 

(2) the imposition of the road impact fees violated his constitutional rights; and 

(3) the developer never agreed to pay the road impact fees through the annexation agreements.

First, the Appellate Court held that the IGA impact fees were not subject to the Impact Fee Law. Under the Impact Fee Law, “road improvement impact fees” are charged by a unit of local government as a condition for a building permit or certificate of occupancy. Here, the IGA fees were imposed as a condition of an annexation agreement and not a permit or certificate, so the Impact Fee Law did not apply.

Second, the Appellate Court rejected the developer's argument that the impact fees were unconstitutional conditions. First, the Court found a sufficient connection between charging the developer fees for road improvements and the stated purpose for imposing the fees which was to reduce traffic congestion. Second, the Court found the fees were roughly proportional to their impact because they were based on the size and location of each parcel. As a result, the Court found that the doctrine of unconstitutional conditions did not apply to the IGA road impact fees so the fees did not constitute an unconstitutional taking without just compensation.

Finally, the Appellate Court rejected the developer’s argument that it never agreed to pay the IGA fees. The Court noted that the annexation agreement expressly stated the developer would pay the IGA fees if a legal challenge failed and, since the developer’s legal challenge was rejected, the developer was required to pay the IGA impact fees.   

Post Authored by Daniel Lev, Ancel Glink

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Municipality Properly Denied Liquor License Based on Previous Denial of a Business License

Municipality Properly Denied Liquor License Based on Previous Denial of a Business License

  Tuesday, November 28, 2023    Julie Tappendorf

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A local liquor commission denied a liquor license to a proposed social club based on the proposed club's failure to obtain a business license, which had been previously denied because of a lack of parking for the business. The proposed club's owner appealed the denial to the State Liquor Commission, which upheld the denial, and the owner appealed to the circuit court. 

The circuit court upheld the denial, finding that both the local liquor commission's and the State Liquor Commission's decisions denying the issuance of a liquor license were "well-supported by the record." On appeal to the Appellate Court, the proposed club's owner argued that the denial was contrary to state statute and a violation of his civil rights. The Appellate Court rejected the owner's arguments and upheld the denial of the liquor license, finding that the municipality properly denied a liquor license where the proposed club had been previously denied a business license because of a lack of sufficient parking for the club. Sledge v. Village of Melrose Park.

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Court Upholds Dismissal of Hunter’s Case Against Forest Preserve District

Court Upholds Dismissal of Hunter’s Case Against Forest Preserve District

  Monday, November 27, 2023    Julie Tappendorf

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A hunter’s lawsuit against a forest preserve district (District) claiming his constitutional rights were violated by the District because of restrictions on his ability to hunt on private land was recently dismissed in Brenczewski v. Forest Preserve District of Will County.

In 1996, the owners of a large parcel of land gave a hunter permission to hunt on their land, without charge. Over the next 20 years, the hunter claimed District employees interfered with his access to the private property and harassed him on multiple occasions. In 2020, District purchased a small piece of the private property, and as part of that purchase agreement, the owners revoked the hunter's permission to enter the property to hunt. The hunter then filed a lawsuit alleging the District violated his constitutional rights and interfered with a business interest between the hunter and the private property owners.

The trial court dismissed the constitutional claim, finding that a "permission to hunt" was not a right protected by the Constitution. The court also dismissed the hunter's business expectancy claim, finding the District immune from liability as a government entity. On appeal, the Appellate Court upheld the dismissal but on different grounds. As to his constitutional claim, the Court held that there was no constitutional violation because there was no government actor involved since any "right to hunt" on the land was between private parties - i.e., the owners of the private property and the hunter. The property owners termination of that "right" because it sold a portion of its property to a government actor did not result in the government violating any constitutional rights. On the business expectancy claim, the Court held that because the permission to hunt was for a non-commercial purpose and provided at no charge, there was no business relationship so there could be no business expectancy claim. 

Post Authored by Daniel Lev, Ancel Glink

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Illinois General Assembly Fall Session

Illinois General Assembly Fall Session

  Wednesday, November 15, 2023    Julie Tappendorf

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The Illinois General Assembly adjourned its fall veto session last week. Before the session ended, the General Assembly acted on a few bills of interest that may be of interest to local governments. We summarized just a few of these below but note that these bills have not yet been enacted and are still awaiting Governor action. We will provide updates if these bills become law.

Electric Vehicle Charging Act Amendment (SB 0384)

We previously reported on the Electric Vehicle Charging Act. If signed by the Governor, this would clarify current language in the Act that refers to multi-family housing. Instead of using both “multi-unit” and “multifamily” residential buildings, this bill solves the ambiguity by only using the term “multifamily” residential buildings. Also, the bill would expand the definition of who is subject to the Act to include unit owners, tenants, landlords, associations of both newly constructed and existing single-family homes, and multifamily residential buildings with parking spaces.

2024 Township Elections (SB 0690)

If signed by the Governor, this bill would prevent a municipality from placing a mental health measure on their primary or general election ballot in 2024 if that municipality is in the same township where a community mental health measure was approved on the 2022 general election ballot.

Eligibility for Public Office (HB 0351)

If signed by the Governor, this bill would do two things. First, it would create a task force comprised of officials responsible for reviewing what criminal conduct currently disqualifies individuals from holding public office and making recommendations as to what criminal conduct should prevent an individual from holding public office. Then, the task force would produce a report, due May 1, 2025, to share its findings. Second, the bill would ban any person convicted of a felony, bribery, or perjury while serving as a public official from holding any local public office unless that person’s conviction was reversed or pardoned by the Governor.

Post Authored by Daniel Lev, Ancel Glink

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