Illinois Freedom of Information Act and Section 7 Exemptions

Chicago Public Media v. Cook County Office of the President, 2021 IL App (1st) 200888, a recent case out of the 1st District Appellate Court (“Appellate Court”), interprets Illinois’s Freedom of Information Act (the “FOIA”) Section 7 exemptions. The case focuses on whether Section 7 was properly asserted to provide redactions of select materials under FOIA.

The appeal arose from a request for records submitted by plaintiff-appellant Chicago Public Media (“Plaintiff”) for records relating to a political action committee (“PAC”) that was chaired by a commissioner (the “Commissioner”) of the Cook County Board of Commissioners (the “CCB”); numerous redacted documents were produced by defendant-appellee Cook County Office of the President (the “OCCP” or “Defendant”). Plaintiff filed an action against Defendant alleging a willful violation of FOIA and sought declaratory and injunctive relief against Defendant.

The circuit court denied Plaintiff’s motion for partial summary judgment, except as to one record of an e-mail containing a press release about a conference the commissioner had spoken at, and granted Defendant’s cross-motion for partial summary judgment (except as to the same e-mail record). Plaintiff filed a motion to reconsider and, after a hearing, the motion was granted only as to a portion of a single redacted material of one e-mail containing talking points about a PAC founded and chaired by the Commissioner.

On appeal, Plaintiff argued that the redacted material was not protected by FOIA, specifically contending that section 7(1)(f) (regarding an exemption made for preliminary drafts, notes, recommendations, memoranda, and other records in which opinions are expressed, or policies or actions are formulated) and section 7(1)(m) (regarding attorney communications) of the Act was not properly asserted by the OCCP and that the trial court had erroneously ruled largely in OCCP’s favor.

On appeal, the Appellate Court considered whether section 7(1)(f) and 7(1)(m) were properly asserted by the OCCP.

In regards to section 7(1)(f) of the Act, the Appellate Court concluded that the OCCP “failed to meet its burden to establish that the challenged redactions at issue pertain to the deliberative process for the development of governmental policy or action relating to the dissemination of information and failed to show that the production of the redacted information would reveal the deliberative process for any underlying substantive policy”, and therefore failed to meet the deliberative process exemption burden under either party’s provided federal precedent. Further, the Appellate Court found that “OCCP failed to meet the burden, required by Illinois law, to present sufficient justification for its claim that section 7(1)(f) protected the withheld information”.

In regards to section 7(1)(m) of FOIA, it exempts, “[c]ommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body”.

At issue in the case were various emails sent between OCCP, OCCP’s Special Counsel and FOIA Officer, and attorney Odelson. The Appellate Court noted that, “OCCP’s claim of an attorney client exemption centers solely on attorney Odelson and not on Felicione in her role as Special Counsel to OCCP. However, the July 31, 2018, e-mail from Felicione to Daily about FOIA request was neither received nor sent by Odelson, and our review of the e-mail shows that it contains no confidential legal communications” and therefore found that OCCP had not established that the July 31, 2018 e-mail was exempt under section 7(1)(m). Further, in regards to the e-mails which did involve the attorney, the Appellate Court found the emails sent by OCCP to the attorney were not protected as the affidavit and in camera review of the emails failed to establish that the attorney was retained by or represented OCCP, did not provide a detailed justification for asserting the exemption, and found, after reviewing the emails, that there was no factual basis for concluding that an attorney-client relationship of any kind existed (nor was any of the redacted material confidential legal advice from the attorney).

The important takeaway here is that the burden of proving a record is exempt from disclosure is by clear and convincing evidence and, therefore, any FOIA exemption should present sufficient justification with as much specificity as possible in order to have the best chance of successfully exempting those portions of the record which are exempt.