FOIA Update: Binding Opinions and Case Decisions
Jul 21, 2012
This In Brief will provide you with a summary of the binding opinions issued by the Public Access Counselor (“PAC”) since our March 2011 publication and two recent FOIA cases.
FOIA grants the PAC power to issue binding opinions which the public body that is a party to the binding opinion must either comply with or initiate administrative review in a court located in Cook or Sangamon counties. Following our March 2011 publication, the PAC issued five additional binding opinions for calendar year 2011 (for a total of seven binding opinions). So far, for calendar year 2012, the PAC has issued eight binding opinions involving FOIA. A brief summary of each of the binding opinions involving FOIA is set forth below.
- In order to assert “unduly burdensome” claim under FOIA Section 3(g) in response to a repeated request from the same person for the same records, a public body must have either previously disclosed the records or properly denied the request. 2011-003.
- FOIA Section 7(1)(s) cannot be cited by a public body to deny a request for the amount of funds paid by a governmental self-insurance pool to settle a claim on behalf of a public body. 2011-004.
- FOIA Section 7(1)(s) cannot be cited by a public body to deny a request for masked test results obtained with respect to workers’ compensation claims. 2011-005.
- Electronic records generated on a public official’s private equipment (i.e., iPhone, Blackberry, etc.) and/or maintained on their personal electronic accounts (i.e., Yahoo or Google e-mail account, etc.) which relate to the transaction of public business by the public body constitute “public records” which are subject to disclosure under FOIA (unless exempt). 2011-006.
* Note the condition that the electronic records must relate to the transaction of public business, as set forth in FOIA. For example, an e-mail between a public official and his wife to pick-up milk on the way home from a board meeting, would not be subject to disclosure under FOIA.
* An appeal is pending regarding this binding decision. See discussion under “Recent Case Decisions” below.
- If paper copies are requested, it is a violation of FOIA Section 3(b) for a public body to unilaterally provide a requester with only the option of inspecting records on the public body’s premises. 2011-007.
* Remember, the first 50 pages of black and white, letter or legal sized copies are free. Thereafter, a public body may charge up to 15 cents per page. For color copies or sizes other than letter or legal, a public body may charge the actual cost of reproduction.
- The “Recurrent Requester” Classification. A public body cannot combine requests from the same household (i.e., separate requests from a husband and wife) for purposes of calculating the total number of requests received during a certain timeframe to reach the statutory threshold for a “recurrent requester”. In addition, a “Request for Review” submitted to the PAC following denial of a request by a public body is not a separate FOIA request and cannot be considered in determining whether an individual is a “recurrent requester”. 2012-001.
* Also, please keep in mind that FOIA expressly provides that a single written request (or oral, if allowed) may identify multiple records to be inspected or copied. Thus, for example, if a requester submits one letter to a public body which contains five requests for different records, it would constitute one request for purposes of the definition of “recurrent requester”.
- A public body must respond to a non-commercial purpose request for records within five business days after receipt. 2012-002.
* Some possible responses include: (a) providing the records requested; (b) written denial of the request for records based upon an exemption set forth in FOIA Sections 7(1) and/or 7.5; (c) extending the time for response by an additional five business days for a reason set forth under FOIA Section 3(e); or (d) provide written notice of “recurrent requester” designation as set forth in FOIA Section 3.2.
- Names of university students and information concerning student graduations are generally subject to disclosure under FOIA. 2012-003.
- FOIA requests may properly be submitted to a public body via personal delivery (i.e., delivery to a Board member during a Board meeting). However, personal delivery at any time or place is not acceptable (i.e., chance encounter on a sidewalk or delivery to a Board member’s private residence). 2012-004.
- Generic description of the nature of services performed, attorney initials, time spent on tasks, rate and dollar amounts listed on legal fee invoices do not constitute attorney-client privileged information exempt from disclosure under FOIA Section 7(1)(m). Opinion further infers that matter names are also subject to disclosure under FOIA. 2012-005.
* Robbins Schwartz recommends that legal counsel be consulted whenever a public body receives a FOIA request for copies of legal fee invoices to ensure that the attorney-client privilege is not waived as a result of the release of certain information contained within these records.
- In certain circumstances, an individual’s “detention” by law enforcement can constitute an “arrest” which would trigger the disclosure of arrest information under FOIA Section 2.15(a). 2012-006.
- A public body failed to meet its burden of demonstrating that a record was exempt from disclosure under FOIA Section 7(1)(a) because it did not cite a state or federal statute, rule, or regulation which prohibits the disclosure of the record. Also, a PAC may require review of certain records to determine if the cited exemption applies to those records. 2012-007.
* A public body should not be concerned that the PAC will provide the requester with copies of the records or documents the public body claims are exempt from disclosure under FOIA. FOIA specifically provides that the PAC shall not further disclose records or documents provided by a public body in response to a request for review.
- A meeting convened by a public body at a private residence is not “open and convenient” as required by the Open Meetings Act. 2012.008.
- A FOIA requester seeking an entire document, rather than specific information contained within that document, is entitled to receive all non-exempt information in the document, including information not specifically requested. Under these circumstances, a public body is not authorized to redact information it considers “outside the scope” of the request. 2012-009.
* Note, however, that a public body may redact information exempt from disclosure under FOIA Sections 7(1) and 7.5.
- A rule which requires a member of the public to provide advance notice of their intent to record an open meeting is not “reasonable” because it places a burden on individuals who want to record an open meeting as permitted by the OMA. Further, such a rule is not necessary to protect the integrity of a public meeting or the safety of those attending it. Rule was determined to be invalid. 2012-010.
* Recall that Section 2.05 of the OMA requires that the public’s right to record meetings must be addressed in board policy. Most policies include a general statement that the recording may not distract Board members, meeting participants, or members of the public.
- The PAC held that OMA Section 2(c)(1), which allows public bodies to discuss in closed session “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees…”, is not intended to allow a public body to discuss general fiscal issues in closed session simply because its budgetary decisions may impact the public body’s employees and, thus, ultimately may lead to properly closed discussions of the employment of specific employees. The PAC further held that this Section does not authorize the discussion in closed session of issues that clearly impact the public body’s budget, such as whether to fill a vacant position, the number of staff needed to provide an acceptable level of service, or which of a public body’s functions are most important to residents, although those issued may directly affect the employment of specific employees. 2012-011.
* The public body subject to this binding decision has until August 15, 2012 to file a complaint for administrative review.
* Please contact any Robbins Schwartz’ attorney if you have questions regarding application of the OMA Section 2(c)(1) exception.
Copies of the PAC’s binding opinions can be accessed via the internet at http://foia.ilattorneygeneral.net/bindingopinions.aspx.
Recent Case Decisions
1. Electronic Records Generated on a Public Official’s Private Equipment
City of Champaign v. Lisa Madigan, Patrick Wade, and The News Gazette
2011-MR-680 (Sangamon Co., IL) (appeal filed)
In December, 2011, the City of Champaign initiated an administrative review action in Sangamon County with respect to the PAC’s binding opinion directing the City to comply with The News Gazette’s request for communications sent or received on personal electronic devices during city council meetings or study sessions that pertain to the transaction of public business, regardless of whether the e-mails and text messages were actually in the possession of the City. Written briefs were submitted to the court by the City, the Office of the Illinois Attorney General, and The News Gazette, and oral argument was held. On June 11, 2012, the Honorable Judge Schmidt affirmed the PAC’s binding decision granting public access to communications sent by City Council members via their personal electronic devices and e-mail accounts during meetings or student sessions which pertain to the transaction of business by the City. On July 11, 2012, the City filed an appeal with the Illinois Fourth District Appellate Court.
Robbins Schwartz will keep you apprised on the status of this case.
2. Does FERPA Actually Prohibit the Release of Education Records?
Chicago Tribune Co. v. Bd. of Trustees of the University of Illinois, 680 F. 3d 1001
(7th Cir. 2012)
As part of an investigation of alleged preferential treatment of “Category I” applicants by the University of Illinois (“U of I”), the Chicago Tribune submitted a FOIA request for records regarding each “Category I” admittee, including the names and addresses of their parents, the identity of individuals who made a request or became involved in their application, the identity of the U of I official to whom the request was made or forwarded, and any documents which reflect any changes in their application status as a result of the request. U of I asserted that the Family Educational Rights and Privacy Act (FERPA) prohibited the release of this information and denied the request.
Rather than file a Request for Review with the PAC or a state court action regarding the denial, the Tribune filed a declaratory judgment action asking the United States District Court for the Northern District of Illinois (federal court) to declare that the FERPA does not bar the release of the requested records. The Tribune argued that the FERPA does not “prohibit” the release of education records. Thus, the exemption cited by U of I is inapplicable to the records’ request.
The Honorable Judge Gottshall determined that the FERPA does not “specifically prohibit” Illinois or its state officials from doing anything. Therefore, U of I may not cite the FERPA as basis to deny access to the requested records. Judgment was entered in favor of Tribune. U of I appealed the decision.
On May 24, 2012, the Seventh Circuit Court of Appeals vacated Judge Gottshall’s decision on jurisdictional grounds ruling that the federal court lacked subject matter jurisdiction over the matter because the Tribune’s claim arose under state law (Illinois FOIA), not federal law. The Court noted that “…the state court is the right forum to determine the validity of whatever defenses the University presents to the Tribune’s request.” The case was remanded to the Northern District of Illinois for dismissal.
Based upon the above, Robbins Schwartz believes that educational institutions may continue to rely on FERPA as basis to deny a FOIA request seeking student education records.
This In Brief was prepared by Catherine R. Locallo of the firm’s Chicago office.
 See Robbins Schwartz’ March, 2011 In Brief entitled “FOIA Update” Binding Opinions and Pre-Approval Letters Issued by the Public Access Counselor.
 Please note that the PAC also has the power to issue binding opinions regarding matters involving the Open Meetings Act (“OMA”). So far, for calendar year 2012, the PAC has issued three binding opinions involving the OMA (2012-8, 2012-10, and 2012-11), which are included in the summaries below.
 See PAC Binding Opinion No. 2011-006. A detailed summary of this binding opinion is set forth in Robbins Schwartz’ November 30, 2011 Law Alert entitled “Disclosure of Certain Private E-mail and Cell Phone Records Required by FOIA”.
 Note that K-12 institutions may rely upon the Illinois School Students Records Act as a basis to deny a request for school student records. FOIA Section 7.5(r) expressly exempts from disclosure Information prohibited from being disclosed by the Illinois School Student Records Act. 5 ILCS 140/7.5(r).