WED SEP 29, 2021 ‐ GENERAL Transparency Reporter The Transparency Reporter is a new quarterly KTJ summary on recent FOIA and OMA court decisions, PAC decisions and legislation changes. In this month’s report we summarize a few recent PAC decisions that address statutory penalties for FOIA violations, the security and vulnerability exemption to FOIA, the preliminary/draft exception to FOIA and some new OMA laws. Contact attorney Mallory A. Milluzzi who authored this Legal Alert by email at mamilluzzi@ktjlaw.com or by phone at (312) 984-6400. Freedom of Information Act Communications with Developer/Applicant on Pending Zoning Project are not Exempt Public Access Counselor Opinion, 21-004, issued May 24, 2021 Public Access Counselor Opinion 21-004 was issued as a reminder that correspondence with third parties who have independent interests are not protected as preliminary communications under Section 7(1)(f). Here, the requester wanted copies of all communications between the City and an applicant for a zoning change that occurred after the date of public notice of a hearing on said zoning change. The City withheld certain records, as they included review comments from the City and its consultants that addressed the application for special use and zoning variations and asserted that they were predecisional and deliberative to allow the City to freely express ideas about the application and provide recommendations to improve the applications prior to formal consideration. The PAC again emphasized that Section 7(1)(f) only applies to internal documents and records exchanged with third parties that represent the public body. It stated that the applicant was a third party business that has its own independent interests and stands to benefit from the City’s final decision on its zoning applications, therefore the records were not inter- or intra- agency communications within the scope of Section 7(1)(f) of FOIA. Employee Attendance Records are Subject to FOIA Disclosure Public Access Counselor Opinion, 21-005, issued June 2, 2021 The Public Access Counselor reiterated that employee attendance records are subject to FOIA and found that the Village of Morton Grove improperly redacted the identifying information of employees who requested time off. Here, the Northwest Side Coalition Against Racism and Hate made a FOIA request to see the names of officers who requested time off between January 1, 2021 and January 8, 2021. The Coalition’s goal was to see if any officers were involved in the attempted coup on the Capitol on January 6, 2021. The Police Department provided records but redacted all identifying information about the officers, relying on Section 7(1)(d)(vi)(exempting information that would endanger the life or physical safety of law enforcement officers) and Section 7(1)(v)(exempting information that would compromise a village’s ability to respond to potential attacks, and put the safety of the community in danger) of FOIA. The Attorney General explained for 7(1)(d)(vi), the Village did not establish a reasonable inference that revealing the attendance records would “endanger the life or physical safety of the police officers or anyone else,” because the Village did not cite legal authority and did not specifically demonstrate how it would put people in harm’s way. The Attorney General wrote “[a] basic employee attendance record simply does not contain the kind of sensitive information that would fall within the scope of the section 7(1)(d)(vi) exemption.” When analyzing Section 7(1)(v) of FOIA, the Attorney General did not accept the Village’s argument that revealing the attendance records could be used to predict staffing levels in the future and would jeopardize village security moving forward. The Attorney General wrote “[r]outine employee attendance records are not vulnerability assessments, security measures, or response policies or plans,” and also added it was never the purpose of the attendance logs to act as those things. Names of Persons Receiving Parking Permits Are Not Exempt Public Access Counselor Opinion, 21-007, issued July 27, 2021 The Attorney General found that the names of people who had received residential parking permits were not exempt under FOIA. A FOIA request was submitted seeking copies of documents relating to residential parking including names of people who received parking permits. The City of Chicago (“City”) provided the documents but redacted the names, home addresses, vehicle information, and license plate numbers contained in the document. The City relied on Section 7(1)(b) and 7(1)(c) for redacting the names. The Attorney General found that, under Illinois case law, names are not unique identifiers unless giving the names would reveal private information. The Attorney General distinguished this factual scenario from the case of Timpone v. Illinois Student Assistance Commission, 2019 IL App (1st) 18115, where the Illinois Appellate Court found the names of students who received financial assistance were exempt because it would reveal personal financial information about the students, which is a form of “private information” as defined under Section 2(c-5) and 7(1)(b) of FOIA. The Attorney General further found that the names of parking permit recipients were not exempt under Section 7(1)(c) of FOIA, as the release would not constitute a clearly unwarranted invasion of personal privacy. An unwarranted invasion of personal privacy is the disclosure of information that is highly personal or objectionable to a reasonable person. The Attorney General and the Illinois courts have found that names can be exempt under Section 7(1)(c), but as emphasized in this Opinion, you must apply the appropriate balancing test. Courts weigh “the plaintiff’s interest in disclosure, the public interest in disclosure, the degree of invasion of personal privacy, and the availability of an alternative means of obtaining the requested information.” National Ass’n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 13 (1st Dist. 2010). The Attorney General determined the FOIA requester, as a resident, had an interest that aligned with the public’s interest to monitor the affairs of local government and hold public officials accountable, especially as the allegations were that the alderman was retaliating with respect to residential parking permits. The Attorney General reasoned that the disclosure of the names would give the public the opportunity to assess the merits of the allegations that the alderman was selectively denying parking permit exceptions to certain individuals and not others for improper reasons. The Attorney General also added disclosing the names would not reveal any information about the people’s personal lives, except that they sought residential permit exceptions, and therefore would not be objectionable to a reasonable person. Alternatively, if revealing the names was objectionable to a reasonable person, the privacy interests did not outweigh the public interest. The Attorney General determined after weighing all four factors, the City violated 7(1)(c) of FOIA and should reveal the names per the request. Case Law Statutory Penalties only Warranted when Public Body Willfully, Intentionally, and in Bad Faith Failed to Comply with FOIA Williams v. Bruscato, 2021 IL App (2d) 190971 The Appellate Court held that a public body will only be subject to a civil penalty under FOIA if the public body willfully, intentionally, and in bad faith failed to comply with the FOIA. Here, the Court found in an earlier opinion that the Winnebago County State’s Attorney improperly denied the requester access to “true bills” of indictment and the requester was seeking statutory civil penalties under Section 11(j) of FOIA. Section 11(j) of FOIA states that a public body will be assessed civil penalties if a court determines that “a public body willfully and intentionally failed to comply with this Act, or otherwise acted in bad faith.” The Court stated that it interpreted the phrase “willfully and intentionally” together with “otherwise in bad faith,” and held that, only where a public body willfully, intentionally, and in bad faith failed to comply with the FOIA, the court shall impose a civil penalty. It further emphasized that the imposition of a civil penalty under Section 11(j), is only warranted when the public body has intentionally failed to comply with the FOIA and has done so deliberately, by design, and with a dishonest purpose. Here, the Court found that there was nothing in the record to indicate that the denial was by design or dishonest and the Plaintiff only made conclusory allegations, unsupported by specific facts, that the State’s Attorney denial was willful, intentional and in bad faith. Therefore, no civil penalties were warranted. Preliminary Drafts and Opinions on News Media Communications Chicago Pub. Media v. Cook Cty. Off. of the President, 2021 IL App (1st) 200888, issued June, 28, 2021 The Illinois Appellate Court found that the Cook County Office of the President (OOCP) had not met its burden of establishing what the function and significance of emails in were in the agency’s decision-making and policy process. Of concern for public bodies is that the Illinois Appellate Court has seemed to impose a new hurdle on Section 7(1)(f) of FOIA – that the discussions and deliberations must relate to a substantive policy. Here, Chicago Public Media made a FOIA request to OOCP for records relating to the political action committee that was chaired by a commissioner of the Cook County Board. The documents at issue were limited and consisted of emails discussing (1) media strategy; (2) Cause the Effect, a political action committee; (3) edits to Commissioner Gainer’s Wikipedia page; and (4) e-mails that include Sabo, who was no longer employed by Cook County, and Phelon, an outside consultant not hired by the county. As to two emails containing track edits to the Wikipedia page of the Commissioner, the track edits do not reflect predecisional communications about any substantive governmental policy or actions or about a policy relating to dissemination of information, and relate to factual content on the Commissioner’s Wikipedia page. The crux of the remaining discussion focused on communications that pertain to media strategy or talking points. Notably, the court held that draft answers to questions posed by a reporter were not exempt because the questions posed by the reporter were not “specifically meant to elicit information about any position the county or the CCB may have as to the marches” and thus, the draft answers “did not relate to the formulation of public relations or press policy for the CCB or the county.” Likewise a draft speech was not exempt, as it was not “part of a process relating to the formulation of any public relations policy of the county or the CCB, and the speech does not reveal the process of developing any substantive government policy or action.” The final email at issue contained “talking points” and the Court pointed out the information that the OOCP failed to include to justify the Section 7(1)(f) exemption. Notably, the Court held that the OOCP needed to provide specificity about the record, the relationship of the author and the recipient, the date of preparation of the talking points, and the function and significance of the talking points in the agency’s process for decision making, as well as whether the talking points were in draft or final form and whether the talking points had been used by the agency. This information was necessary to determine whether the talking points were an essential part of a “consultative process” or, if released, would prematurely or incorrectly disclose the agency’s view. Finally, the Court found that the OOCP did not prove by clear and convincing evidence that communications with attorney Odelson were protected because OCCP never offered substantiation to define the existence or nature of Odelson’s legal relationship to OCCP, the CCB, or Commissioner Gainer with respect to plaintiff’s FOIA requests and the court could not determine from the emails, a factual basis that an attorney-client relationship of any kind existed. HIPAA Does Not Prevent De-Identified Information From Being Disclosed, And The Year Of Admission To A Hospital Is Not Personally Identifying Sun-Times v. Cook Cty. Health & Hosp. Sys., 2021 IL App (1st) 192551, issued 06/30/2021 Sun-Times filed suit alleging the defendant Cook County Health and Hospital System (CCHHS) did not produce records after Sun-Times made a FOIA request. Sun-Times requested, via FOIA, records of the times and dates people were admitted to the hospital for gunshot wounds who were not accompanied by police officers, and documents relating to policy, internal memos, communications, instructions, and/or directives for staff reporting gunshot wounds to law enforcement. CCHHS contended these records were exempt under 7(1)(a) and 7(1)(b) of FOIA from producing the date patients were admitted to the hospital. The trial court granted summary judgment in favor of CCHHS and found it was exempt from disclosing the year the patients were admitted because it was a medical record. The issue is whether Sun-Times’ FOIA request for identification of the years patients were admitted to the hospital with gunshot wounds and not accompanied by police officers should be denied under an exemption for private information. The court held neither 7(1)(a) nor 7(1)(b) exempted CCHHS from completing the FOIA request. Section 7(1)(a) exempts disclosure of “information specifically prohibited from disclosure by federal or State law.” The court analyzed if HIPAA prevented the year of admission to the hospital from being disclosed. The court explained so long as the information is de-identified, HIPAA does not prevent the information from being disclosed. Information is de-identified when the names, geographic subdivisions smaller than a state, phone numbers, Social Security numbers, etc. are removed. The court reasoned the year of admission was not an identifier, the patients privacy was protected, and therefore HIPAA did not prevent the information from being disclosed. Section 7(1)(b) prohibits the disclosure of “private information.” CCHHS argued medical records were private information and the year of admission counted as a medical record. The court disagreed and stated “the year of admission for a specific injury is not private information where it is entirely divorced from any personally identifying information.” The Sun-Times FOIA requests should have been recognized and executed by CCHHS. Security Risks Do Not Need To Be Proven By Clear And Convincing Evidence, Just By Reasonable Expectation Sun-Times v. Chicago Transit Auth., 2021 IL App (1st) 192028, issued 06/24/2021 Sun-Times filed suit seeking disclosure under FOIA for video of a subway platform that showed one person pushing another off the platform. The trial court granted summary judgment in favor of Sun-Times, and the Appellate Court heard the appeal. The Chicago Transit Authority argued it was exempt from disclosing the video under Section 7(1)(v) of FOIA. Section 7(1)(v) protects security measures, and the CTA argued exposing this video would put their security measures in jeopardy. While the investigation of the criminal assault featured in the video was ongoing, a protective order protected the video from being disclosed. However, when the criminal trial ended, this FOIA action resumed. The trial court ruled CTA did not show by clear and convincing evidence that revealing the video would jeopardize the effectiveness of the security system. CTA argued this standard was not a proper application of the law. The issue in this case is the interpretation of the statute itself and whether CTA has to show by clear and convincing evidence their security system would be compromised if the video was released, or just that release could reasonably be expected to compromise the security system. The court examined federal law, reasoned the Illinois FOIA was based on federal law, and concluded Section 7(1)(v) of Illinois FOIA does not require CTA prove by clear and convincing evidence their security system would be compromised if the video was released. The court reasoned the CTA had met its burden that the security video would reasonably be expected to compromise the security system and reversed the trial court’s order. For information to be withheld under Section 7(1)(v) of FOIA, public bodies do not need to show by clear and convincing evidence disclosing the information creates a security risk: just a reasonable expectation. Public officers have a duty to respond to FOIA requests within the statutory time period. Public Access Counselor Opinion, 21-008, issued August 31, 2021 The Chicago Tribune requested access to the text messages sent between the Mayor of Chicago and two individuals associated with Loretto Hospital between December 1, 2020 and March 29, 2021. Sec. 3 (d) of FOIA requires public bodies to promptly comply with or deny a request for public records within five days unless time is properly extended. The Mayor’s Office acknowledged receiving the request and extended its time to respond, however failed to respond. The Chicago Tribune submitted its Request to Review to the Public Access Counselor and Public Access Bureau alleging that 20 FOIA requests were without response from the Mayor’s Office, including the request at issue. Thrice thereafter, the Public Access Bureau inquired to the Mayor’s Office whether the requests were received and the status of the Mayor’s Office’s response. As of the date of this binding opinion, the Mayor’s Office has not provided the information requested to the Chicago Tribune. The Attorney General found that the Office of the Mayor is in violation of section 3(d) of FOIA by failing to respond the Chicago Tribune request, and is directed to immediately provide copies of the requested records or to deny the request in writing in whole or in part. Open Meetings Act One must make a verbatim recording of the closed session portion of the meeting. Public Access Counselor Opinion, 21-006, issued July 7, 2021 A minute taker for the South Central Illinois Mass Transit District noticed, after a closed meeting, the box containing the recorder was untouched. The minute taker alerted the District’s legal counsel. The Public Access Bureau sent a copy of a Request for Review to the Board President and the District’s Managing Director. Section 2.06(a) of OMA requires public bodies keep a verbatim record of all their closed meetings. The District responded to the Request for Review by stating the recorder was inadvertently not turned on for the closed session, and the district would be putting new procedures in place. The Attorney General determined the District violated the Open Meetings Act when it did not make a verbatim recording of its closed session. The District was directed to adopt procedures to ensure all future closed session meetings are properly recorded. News Laws Closed Minute Review Now Required Every 6 Months Public Act 102-653, effective January 1, 2022 Section 2.06 of the Open Meetings Act (OMA) is amended to require all public bodies to review the minutes of closed sessions every six months, or a soon as practical thereafter (rather than a semi-annual review). Additionally, ad hoc committees shall review closed session minutes within six months of the closed session or at the next scheduled meeting, whichever is later. Additionally OMA was amended to clarify that if a public body is dissolved, disbanded, eliminated, or consolidated, the duty to review closed meeting minutes of the defunct public body falls to the unit of local government that has assumed its functions and responsibilities. New Empowering Public Participation Act Public Act 102-348, effective August 13, 2021 Public Act 102-343 creates the Empowering Public Participation Act, which prevents law enforcement agencies from knowingly and intentionally conducting background checks on individuals participating in open meetings of public bodies unless an agency or officer a) has reasonable suspicion of criminal conduct; b) finds a reasonable threat to security of the open meeting; c) seeks protection of public officials and others attending the public meeting; or d) the individual is under consideration for public appointment by the body to which they are speaking. The violation of this Act provides no claim for damages or other relief but will result in a Class C misdemeanor. Authored by: Mallory A. 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