Illinois Attorney General Issues Three More Public Access Opinions

June 22, 2017

This month, the Illinois Attorney General issued three binding Public Access Opinions concerning both Illinois’s Freedom of Information Act (FOIA) and the Open Meetings Act (OMA).

Public Access Opinion 17-004

In issuing its fourth binding Public Access Opinion of 2017, the Illinois Attorney General’s Office found that a municipality improperly went into closed session based upon Section 2(c)(11) of Illinois’s OMA. Under Section 2(c)(11) of the OMA, a public body may enter into closed session to discuss “[l]itigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.”

At issue was a municipality’s decision to enter closed session on the basis of “pending or probable” litigation to discuss the municipality’s continued participation in an intergovernmental agreement with an adjacent town. However, no case was currently pending, and the mayor had even stated that he “doubts there will be a lawsuit.” Additionally, no decision on whether the agreement would be altered or terminated had been made at the time the public body entered closed session. For these reasons, the Attorney General determined that the municipality’s closed session was not authorized by Section 2(c)(11) of the OMA.

While this binding opinion does not necessarily provide anything new, it does show that the “probable or imminent” litigation exemption will be enforced stringently.

Public Access Opinion 17-005

In the fifth binding Public Access Opinion of 2017, the Attorney General found that a municipality violated the FOIA by failing to disclose statistical data upon receiving a request for traffic counts from roadway monitoring operations.

The municipality claimed that this data was exempt under Section 7(1)(f) of the FOIA. Section 7(1)(f) exempts “[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are formulated . . . .” The municipality argued that the statistical data should be exempt from disclosure because it is in preliminary draft form. However, after reviewing the responsive records, the Attorney General determined that “[t]he statistical information is purely factual, including numbers representing the traffic volume for [specific sections of roadways].” As such, the Attorney General found that the requested records were not exempt from disclosure. In so finding, the court reiterated that “simply because the data may be subject to review and possible revision does not make the data itself preliminary or deliberative communications within the scope of Section 7(1)(f).”

Public Access Opinion 15-006

In the sixth binding Public Access Opinion of 2017, the Illinois Attorney General’s office found that the Illinois Department of Corrections (IDOC) violated the FOIA. Specifically, a reporter with the Associated Press sent a FOIA request to the IDOC seeking records “sufficient to show the job titles, locations, and numbers of employees in each category which the Department of Corrections considers essential and who would be required to report to work in the event of interruption in state employee pay and the closing of some offices and services.”

In denying the request, the IDOC simply stated “to the extent [documents] exist, [the documents] are exempt from production pursuant to Section 7(1)(m)” and/or “Section 7(1)(f) [of FOIA].” On review, the Public Access Counselor sought a copy of the records in question for a confidential assessment, however, the IDOC refused to release the records to the Public Access Counselor.

As such, the Attorney General determined that the IDOC was in violation of Section 9(a) of the FOIA for failing to provide a “factual basis supporting either of its claimed exemptions.” Additionally, the IDOC was also found to be in violation of Section 9(c) for failing to provide copies of the records for confidential review. Interestingly, the Attorney General also took issue with how the IDOC worded its denial, specifically with the language stating “to the extent the records exist . . . .” Pursuant to Section 3(d) of the FOIA “[e]ach public body shall, promptly comply with or deny a request for public records within 5 business days after its receipt of the request, unless time for response is properly extended under subsection (e) of this Section.” The Attorney General went on to state that “[t]he options available under FOIA do not include responding in the hypothetical, by claiming that any responsive documents that may exist are exempt without acknowledging the existence of responsive records.

Although the Public Access Counselor was unable to review the records at issue, the Attorney General held that the asserted exemptions did not apply. Specifically, the exemption relating to attorney-client privilege and attorney work product (Section 7(1)(m)) did not apply because the IDOC did not provide “any factual basis, supporting legal authority, or objective indicia demonstrating that any responsive records are in fact (1) communications with an attorney acting as a legal advisor and relating to legal advice; or (2) material created in preparation for trial that would reveal the theories, mental impressions or litigation plans of the attorney.”

Additionally, the Attorney General found that the exemption concerning predecisional and deliberative materials (Section 7(1)(f)) did not apply because the IDOC failed to provide the Public Access Counselor “with a factual basis for [the IDOC’s] assertion that the records at issue constitute records in which opinions are expressed, or actions or policies are formulated.”