Benjamin L. "Ben" Schuster is an Associate and Mark E. Burkland is a Partner both in our Chicago office.
HIGHLIGHTS:
- The Illinois Supreme Court rules state's attorneys are subject to the Freedom of Information Act.
- The Illinois attorney general rules that: (i) the Open Meetings Act requires public bodies to recite the key terms of agreements; and (ii) public bodies are prohibited from using confidentiality provisions in agreements to withhold records.
The Illinois Supreme Court and the Illinois Attorney General's Public Access Counselor (PAC) have recently issued several opinions regarding the Freedom of Information Act (FOIA) and the Open Meetings Act (OMA). These decisions, made in April and May of 2014, have affirmed the court's and attorney general's expansive readings of FOIA and OMA and demonstrate the importance of strictly following their requirements.
Nelson v. Kendall County
On May 22, 2014, the Illinois Supreme Court in Nelson v. Kendall County, 2014 IL 116303, made clear that the Illinois state's attorneys and their offices are subject to the disclosure requirements of FOIA.
WSPY radio in Plano, Ill., submitted an FOIA request to the Kendall County state's attorney for email messages sent and received by two assistant state's attorneys. The state's attorney's office denied the request in its entirety, claiming that state's attorneys are part of Illinois' judicial branch and therefore not subject to FOIA.
FOIA applies to "public bodies," which are defined in Section 2(1) of FOIA as:
This definition does not refer to judicial bodies of the state, which include the courts and court-affiliated entities that perform judicial functions, such as clerks of the courts.
Citing a long list of case law, the Illinois Supreme Court ruled that the offices of the state's attorneys are part of the executive branch of the state – not the judicial branch. Accordingly, the state's attorneys and their offices are "public bodies" under FOIA and therefore subject to FOIA's disclosure requirements.
This case raises the question of what records the state's attorneys must disclose in response to an FOIA request. FOIA contains no exemption specifically aimed at keeping the records of state's attorneys confidential. Further, it is not clear that FOIA exemptions applicable to police departments and other types of law enforcement agencies are applicable to state's attorneys.
Section 7(1)(d) of FOIA allows "law enforcement or correctional agencies" to withhold records if the release of the records:
- may interfere with law enforcement proceedings
- create a likelihood someone may denied a fair trial
- disclose the identities of confidential sources and complaints
- reveal special investigative techniques
- obstruct ongoing investigations
- endanger someone's life or safety
The terms "law enforcement agency" and "correctional agency" are not defined in FOIA. Therefore, it is not certain that state's attorneys can keep all of their case files confidential – even if release of the records may interfere with the prosecution of criminals, create a danger to someone's life or safety, or deny someone a fair trial.
A police department is a law enforcement agency that can withhold records under Section 7(1)(d) of FOIA. However, it is not clear that a state's attorney's office is a law enforcement agency. The state's attorney's role is not to enforce the law, but rather to serve as the state's legal representative in litigation.
It remains to be seen what impact the Supreme Court's decision will have, or how the PAC or the courts may address this issue in the future.
Illinois Attorney General Opinions
After many months passed without any new binding opinions from the PAC, the PAC issued four binding opinions on FOIA and OMA in April and May of 2014. Although binding opinions are binding only on the parties that are the subjects of the opinions, the opinions do indicate how the PAC may rule in future decisions, thus they are studied closely.
Opinion No. 14-001 – Details of Agreements
In Public Access Opinion No. 14-001, the PAC held that public bodies must publicly recite the key terms of agreements at public meetings before approving agreements.
In January 2013, the Springfield Public School District No. 186 Board of Trustees signed, in closed session, a separation agreement between the school district and its superintendent. A reporter brought an OMA challenge against the school district, claiming that the school board violated Section 2(e) of OMA by taking final action in closed session. While this matter was pending before the PAC, the school board voted in open session during its March meeting to approve the agreement that was previously signed in closed session. The PAC ruled against the school district, holding that the signing of the agreement in closed session was not valid. The school district then appealed the PAC's opinion to the circuit court.
The court ruled in favor of the school board, finding that the school board's final action was not the signing of the agreement in closed session; rather, it was the subsequent roll call vote in open session approving the agreement. The court then remanded the matter back to the PAC to determine if the school board had engaged in a sufficient public recital regarding the approval of the agreement to satisfy the purported public recital requirements of Section 2(e) of OMA.
At the meeting, the school board president called for the consideration of the separation agreement and asked for a motion approving the agreement, stating:
A motion was then made and the school board voted to approve the agreement.
Section 2(e) of OMA provides, in part:
On remand, the PAC ruled against the school board. According to the PAC, Section 2(e) requires public bodies to orally recite at open meetings a summary of the "key terms of a proposed public contract or agreement." While this language is not in OMA, the PAC reasoned that although the school board named the agreement being considered, which may have satisfied the statutory requirement of a "public recital of the nature of the matter being considered," the president's statement, according to the PAC, did not provide "other information that will inform the public of the business being conducted." The PAC declared that this second standard requires public bodies to inform the public of an agreement's key terms – orally, before any vote.
The school district argued that it provided sufficient public notice by posting the entire agreement online at least 48 hours prior to the school board's meeting. The PAC rejected this argument, explaining that the agenda-posting requirements are found in Section 2.02 of OMA and thus are distinct from requirements in Section 2(e) of OMA regarding the public recital.
In its decision, the PAC acknowledged that requiring the reading of a full agreement was impractical because it would slow meetings down to a crawl. The PAC nevertheless considers it reasonable to require public bodies to summarize an agreement's key terms.
The effects of this binding opinion may be significant, if applied broadly. Most public bodies approve agreements in the same manner as the Springfield School District, without providing a summary of their key terms. It is troubling that the PAC does not offer any guidance on what terms of an agreement are "key terms." Nor does the PAC attempt to reconcile its position with state laws that allow public bodies to approve agreements and other matters using a "consent agenda" on which numerous matters may be listed and approved on a single vote without elaboration.
Public Access Opinion No. 14-002 – Legal Bills
On April 15, 2014, the PAC issued binding opinion No. 14-002, in which the PAC held that public bodies cannot withhold legal bills in their entirety from FOIA requesters under Sections 7(1)(m), (n), or (p) of FOIA.
In December 2013, a newspaper submitted an FOIA request to the city of Urbana, Ill., requesting copies of the legal bills received by the city's labor attorneys. The city denied the FOIA request under Sections 7(1)(m), (n) and (p) of FOIA. The requester appealed the denial to the PAC.
Section 7(1)(m) exempts from disclosure communications between a public body and an attorney that would not be subject to discovery in litigation. This exemption protects attorney-client privileged records from disclosure.
The PAC ruled that Section 7(1)(m) does not allow public bodies to withhold legal invoices in their entirety. The PAC explained that public bodies may redact descriptions of legal services that include privileged information, such as the specific topics researched or discussed by the public body's attorney, but public bodies cannot withhold descriptions of legal services if the description does not contain information that is privileged. According to the PAC, general descriptions, such as "holding a telephone conference," "exchanged emails," or "drafting and revising a memo" are too general to reveal privileged information. Similarly, the PAC explained that attorneys' initials, the time spent on the tasks described and the amounts billed do not constitute privileged information that can be withheld under Section 7(1)(m) of FOIA.
The PAC's position seems to ignore the fact that disclosures of when communications are made, how long those communications last, when and with whom the attorney is communicating, when memoranda are being written, and similar matters may reveal legal strategies and positions. Public bodies should remain cautious about making public legal invoices relating to confidential or strategic matters, whether related to litigation or a myriad of other circumstances. To avoid inadvertent disclosure of confidential attorney-client communications, public bodies should consult with their attorneys on these matters.
The city also claimed the invoices were exempt from disclosure because the invoices include time entries related to employee disciplinary matters that may proceed to arbitration or result in discipline or termination of employees. Under Section 7(1)(n) of FOIA, records relating to a public body's adjudication of employee grievances or disciplinary cases are exempt from disclosure. (This exemption does not apply to the final outcome of cases in which discipline is imposed.) The PAC disagreed, ruling that Section 7(1)(n) applies only to those situations in which the adjudication process has actually been initiated, not just contemplated.
The PAC also rejected the city's use of Section 7(1)(p) to withhold the invoices. Section 7(1)(p) exempts records from disclosure that are related to collective bargaining negotiations. The PAC held that "the fact a public body has secured and paid for the services of an attorney or attorneys to assist with collective bargaining matters, however, is not information pertaining to the collective bargaining process, as such." According to the PAC, as with Section 7(1)(m), a public body can withhold the parts of a legal invoice that provide descriptions of legal services if the descriptions are specific enough to reveal the issues the public body plans on raising as part of its negotiations, but the exemption does not apply to general descriptions of legal services if release of the descriptions will not impact the negotiations.
This binding opinion is consistent with the PAC's previous binding opinions and further reveals how narrowly the PAC reads the exemptions provided by Sections 7(1)(m), (n), and (p) of FOIA.
Public Access Opinion No. 14-003 – Meeting Agendas
On May 5, 2014, the PAC issued binding opinion No. 14-003, finding that Saint Clair Township complied with OMA in posting its meeting agenda. This opinion marks the first time the PAC has ever ruled in favor of a public body in an FOIA or OMA binding opinion.
In January 2014, Saint Clair Township posted an agenda for its January board meeting more than 48 hours before the meeting as required by Section 2.02 of OMA. Approximately 29 hours prior to the meeting, the township removed two items from the agenda and re-posted the amended agenda. A challenger claimed that Section 2.02 prohibits a public body from amending its agenda within 48 hours before the meeting.
Section 2.02 of OMA provides in part that an "agenda for each regular meeting shall be posted at the principal office of the public body and at the location where the meeting is to be held at least 48 hours in advance of holding the meeting." Nothing in Section 2.02 or any other provision of OMA specifically addresses amendments to agendas.
The PAC ruled that while an item must be on a publicly posted agenda at least 48 hours before a public body takes final action on that item, public bodies are free to amend their agendas to remove items at any time. Public bodies are not required to take any action on an agenda just because that item has appeared on an agenda.
Public Access Opinion No. 14-004 – Settlement Agreements
In Public Access Opinion No. 14-004, the PAC ruled that public bodies cannot withhold settlement agreements from FOIA requesters even if a settlement agreement contains a confidentiality provision. The PAC held that these confidentiality provisions are unenforceable.
In December 2013, the Belleville News-Democrat asked Saint Clair County to produce copies of all settlement agreements entered into by the County during the past year. The county denied the request as to certain settlement agreements because the agreements contained confidentiality provisions prohibiting the county from disclosing the terms of the settlements. The county also claimed that some of the settlement agreements were exempt under Section 7(1)(c) of FOIA because the agreements related to claims of sexual harassment and the identities of those who filed sexual harassment claims are highly personal.
The PAC ruled that public bodies cannot use confidentiality provisions to deny an FOIA request. According to the PAC, confidentiality provisions "contravene public policy as set forth in FOIA" and "are unenforceable as written." Section 2.20 of FOIA provides that "settlement agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public, provided that information exempt from disclosure under Section 7 of this Act may be redacted."
In its opinion, the PAC explored the legislative history of Section 2.20, which was added to FOIA in 2010. The PAC noted that during the legislative debate, several members of the general assembly explained that Section 2.20 was added specifically to end any attempt by public bodies to keep settlement agreements secret by inserting confidentiality provisions.
The PAC also rejected the county's contention that the settlement agreements were exempt from disclosure in their entirety under Section 7(1)(c) because the agreements contain the names of those who filed sexual harassment claims against the county.
Section 7(1)(c) exempts from disclosure information that is "personal information [...] the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The PAC held that this exemption did not apply to the specific settlement agreements at issue because the agreements "[did] not contain references to the specific allegations underlying the complaints that led to the settlements, the disclosure of which could potentially be embarrassing to the complainants." Further, the PAC explained that even if release of the complainants' names would be an invasion of personal privacy, the invasion was warranted because the public has a right to know the identities of those who receive public funds and the reasons for the expenditures of those funds.
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