Fourth PAC Decision of 2018

Author: Jacob D. Caudill
March 21, 2018

Earlier this month, the Illinois Attorney General issued its fourth opinion of 2018. In this opinion, the Attorney General’s office analyzed the use of the Freedom of Information Act’s trade secrets exemption (5 ILCS 140/7(1)(g)). The FOIA request at issue sought the “latest revised redevelopment cost budget” submitted by a third party developer. The city denied the request pursuant to Section 7(1)(g) of the FOIA, which exempts trade secrets.

In ultimately ruling that the City violated the FOIA, the Attorney General concluded that Section 7(1)(g) did not apply for two reasons. First, the Attorney General stated that there must have been an express claim that records sought are “proprietary, privileged or confidential.” In particular, the Attorney General found the third party’s claim that it “submitted the information under an implied promise that [the records] would be kept confidential” to be insufficient, as the statute requires the claims to have been expressly made. Second, the Attorney General found that the City also failed to establish “that disclosure of the Budget would cause competitive harm to [the third party].” Specifically, the Attorney General found that the City did not provide specific facts or evidence that would have demonstrated competitive harm to the third party. The Attorney General went on to state “[i]n particular, the City has not detailed what competition [the third party] faces . . . [and] has not described how the line items in the Budget could be used to structure competitors’ developments in a way that would harm [the third party].”

As such, municipalities should always use caution when attempting to exempt records under Section 7(1)(g) of the FOIA.

Jacob D. Caudill