NBC 5 FOIA REQUEST UPDATE

By John Fester

April 24, 2019

On March 26, many of you received a FOIA request from NBC 5 requesting information about and the location of emergency storm shelters in your buildings.  We sent NBC a request that they withdraw that portion of the FOIA requesting the location(s) where students would congregate in each school due to safety concerns about revealing this information to the general public.  Having not heard back from NBC within the time permitted to respond to the FOIA, we counseled those clients who contacted us for assistance with a response to provide their severe weather procedures, but not the location(s) where students would congregate.

 On Monday, April 22, Ms. Deloian, who issued the FOIA request on behalf of NBC, responded by withdrawing her request for storm shelter location records in recognition of our safety concerns, stating in part, “I completely understand the schools [sic] concerns in revealing where students go for safety purposes, and therefore I am willing to take records that reflect the procedures undertaken in the event of a tornado warning.”  Therefore, for those of you that sent your severe weather procedures, NBC is accepting that response and we do not anticipate any follow up from NBC or the Public Access Counselor.

 If you have any questions regarding this matter, please contact your SHP attorney.

NBC'S FOIA REQUEST

By John Fester

March 27, 2019

On March 26, many of you received this FOIA request from NBC 5:

 This is a request under the Illinois Freedom of Information Act.  I am making this request of more than 350 public school districts in twelve Illinois counties in the greater Chicago area, including Community High School District 128, for a news story we are working on at NBC5 about school tornado preparedness. 

 Please provide me with documents showing which school buildings in your district each have a storm shelter that meets the minimum requirements of the ICC/NSSA Standard for the Design and Construction of Storm Shelters (ICC-500) [published jointly by the International Code Council and the National Storm Shelter Association and available at https://codes.iccsafe.org/content/ICC5002014?site_type=public], including the location of each shelter relative to its assigned school building.

 For those school buildings in Community High School District 128 that do not have a storm shelter that meets the minimum requirements described above, please provide me with documents showing how and where the children in each of those school buildings are to be sheltered, in case of a tornado emergency, including the location of each shelter relative to its assigned school building.

 Please send all material to me at olivia.deloian@nbcchicago.  If for some reason you cannot send these records electronically, please contact me so that I can make other arrangements to get these documents from you.  And if there is any way at all that I can help you gather this material, I would be most happy to do so.

 Because these records are in the public interest, I ask that you waive any reproduction fee.  And if you deny this request, please tell me on what grounds, and to whom I should appeal. 

 If you have any questions concerning this request or need any additional information, please don’t hesitate to contact me.  Thank you so much for your time and consideration in this matter. 

 Sincerely,

 Olivia Deloian

Researcher, NBC5 Investigates

 Today, we sent Ms. Deloian the following email expressing concerns that several clients have raised regarding this FOIA:

 Ms. Deloian:

 My name is John Fester and my law firm represents over 80 school districts in the suburban Chicago area, many of which received a FOIA request from you yesterday seeking records regarding storm shelter availability, or in the absence of a storm shelter, where the students go in the event of severe weather.  For those clients with schools built in 2015 or later, or with schools that have been substantially expanded through additions since 2015, they will be able to send you the records reflecting inclusion of ICC-500 storm shelters in their building plans, since that is when Illinois began requiring them in new construction.

 However, the vast majority of school districts only have buildings built before 2015, and therefore are not required to have ICC-500 storm shelters.  For these schools you have asked for records identifying where the students go in the building during severe weather.  Several clients have raised a concern with revealing to the general public where students would be congregated during a severe weather incident.  The recent school shootings around the country have all school districts paying very close attention to school security.  The concern is that if a gunman wanted to inflict maximum injuries/casualties at a school, knowing when the student body would be assembled in a gymnasium, theater, or other large space would help such a person time an attack.  For that reason, I would like to discuss whether you would accept other records and not request of our clients the location(s) for student assembly in the event of severe weather.

 Would you be willing to take records that reflect the procedures that would be undertaken in the event of say a tornado warning?  The procedures I have reviewed so far from a few clients identify the actions to be taken (e.g. close any open windows, close shades/blinds to reduce possibility of flying glass, lead students to predetermined area in the building, account for all students, etc.), but stop short of identifying the location(s) of student assembly.  In light of our clients’ desire to give absolutely no help or advantage to anyone seeking to inflict mass harm on their students, I sincerely appreciate your consideration of my request and I am happy to discuss any questions or concerns you might have.  Thank you.

 We are waiting to hear back from Ms. Deloian.  If you would like assistance in responding to this FOIA request, please email your SHP attorney and we will be happy to assist you with an appropriate response to this request.

GRANDFATHERED CONTRACTS TO BE SUBMITTED TO TRS BY MARCH 29, 2019

By Adam Dauksas

February 19, 2019

On June 4, 2018, then-Governor Bruce Rauner signed into law Public Act 100-0587, which reduces the 6% soft cap on end-of-career TRS creditable earnings increases to 3% for any individual employment contracts and collective bargaining agreements entered into on or after that date.  “Grandfathered” contracts and collective bargaining agreements entered into before June 4th are still subject to the old 6% limit.  Also, for employees not covered by a bargaining agreement or an employment contract, TRS will accept employment policies for grandfathering if notice was provided as required by the employment policy prior to June 4, 2018 and payments are made pursuant to the term of the policy prior to June 30, 2022.

 Now, in order to help it administer the new law, TRS has launched a CBA/Contract Collection Portal and is requiring school districts to submit all grandfathered employment contracts and collective bargaining agreements to TRS via this online portal by March 29, 2019.  Employees covered by grandfathered retirement policies also need to be identified through the portal.  According to TRS, “[i]f the required information is not received by TRS, any year-over-year salary increases in the 2018-19 and future years will be subject to the 3 percent threshold.”  Districts can access the portal here.

 To avoid any unforeseen TRS excess cost penalties, we recommend that your district comply with this mandate.  Should you have any questions regarding these new TRS obligations, your attorneys at Scariano, Himes and Petrarca, Chtd. stand ready to assist.

Tags     Personnel; Pensions

COURT DECISION PRESERVES LIMITED DISCIPLINARY RECORD EXEMPTION IN FOIA

By James A. Petrungaro

 

July 5, 2018

             The Illinois Appellate Court has rejected a plaintiff’s attempt to erode the Personnel Records Review Act’s  (“PRRA”) prohibition on publicly disclosing disciplinary records older than four years. At issue in Johnson v. Joliet Police Department  was Johnson’s Freedom of Information Act (“FOIA”) request for a police officer’s “disciplinary history.” The Joliet Police Department (“JPD”) acknowledged that though such records did exist, they could not be disclosed because they were older than four years and the Personnel Records Review Act prohibits the disclosure of such records. That law states: 

An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered to a party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old. 

Thus, the JPD denied the FOIA request. 

            Appealing the JPD’s decision to the Circuit Court and then to the Appellate Court, Johnson argued that the PRRA’s prohibition has no application in the context of a FOIA request because the PRRA also states: “This Act shall not be construed to diminish a right of access to records already otherwise provided by law…” The Appellate Court disagreed with Johnson’s argument, noting that Section 7.5(q) of FOIA specifically exempts from disclosure “information prohibited from being disclosed by the [PRRA].” Therefore, the FOIA did not provide a separate right of access to the disciplinary records. 

            Following Johnson, school districts and other public bodies are free to continue denying FOIA request for disciplinary records older than four years of age. For disciplinary records within four years of a request, Section 7(1)(n) of FOIA – which exempts records “relating to a public body’s adjudication” of disciplinary cases – may be applicable. However, limited application of that exemption has been permitted by the courts and the Public Access Counselor, as it requires a decision by the governing board following a legal process, such as a hearing. 

            If you need assistance navigating the mandatory and permissible exemptions found in FOIA, your attorneys at Scariano, Himes and Petrarca stand ready.

U.S. SUPREME COURT RULES AGAINST FAIR SHARE FEE ARRANGEMENTS

June 27, 2018

 This morning the United States Supreme Court issued its opinion in Janus v. AFSCME and has ruled that requiring a bargaining unit member to pay Fair Share deductions to the union representing the bargaining unit is unconstitutional.  Recall that Fair Share payments are payroll deductions for bargaining unit members who have not elected to join the union as a full member, but who are nevertheless covered by a Fair Share fee requirement in a collective bargaining agreement.  If you have Fair Share fee payers in your district, you now must immediately cease deductions of Fair Share amounts and cease remittance of those fees to the union.  If you have a payroll being processed this week, make sure your payroll department knows to eliminate Fair Share deductions from any person who has been assessed such deductions this year.

 This decision DOES NOT affect union member voluntary dues deductions.  Payroll deductions for employees who are voluntary members of the union MUST continue.  This ruling only applies to employees covered by a Fair Share provision who have not elected to join the union as full members.

 Please contact your SHP attorney to discuss any questions or concerns you may have.

APPELLATE COURT DECISION DEALS BLOW TO FOIA FISHING EXPEDTIONS

By John Fester and James Petrungaro

April 16, 2018

In 2016, the Illinois Appellate Court ruled in Hites v. Waubonsee Valley Community College that electronic databases maintained by public bodies are “public records” under the Freedom of Information Act (“FOIA”) and thus can be the basis of a FOIA request. Parsing between general “searches” of databases and the request for records from existing database “fields,” the Appellate Court in Hites ruled that electronic records in databases must be disclosed (absent a qualifying exemption or undue burden upon the School District) unless the request results in the creation of a “record” not previously maintained. For example, under the reasoning in Hites, a school district payroll database including a “field” containing the salary of every administrator would be subject to disclosure if so requested; however, a request for “the number of administrators earning more than $100,000” would not be subject to disclosure under FOIA if that particular database field does not already exist. Thus, even though the requested information/data could be derived from a search of the database, it was not subject to mandatory disclosure under FOIA because it requires the creation of a new record.

A recent decision from the Appellate Court follows the court’s reasoning in Hites and provides additional guidance for responding to FOIA requests that do not identify specific records or database fields. In Martinez v. Cook County State’s Attorney’s Office, issued on March 12, 2018, the Court once again distinguishes between database queries that produce already existing public records and queries that are tantamount to “research” of public records and which produce newly created public records.

Initial Request 

 The FOIA dispute began with Martinez’s request for records from the State’s Attorney’s Office (SAO) relating to criminal prosecutions involving the use cell site simulators. These devices help law enforcement to locate, pinpoint and sometimes interfere with cellular communications. Martinez first requested records “for each instance in which information [was] obtained using [stingray] equipment in a criminal prosecution,” including the case identifier, criminal charges at issue, case outcome, stingray evidence used, and certain other information.” (Emphasis added.) The SAO denied the request, first noting that it does not maintain a record identifying which of its thousands of criminal cases specifically relied upon stingray evidence. The SAO also denied the request on the grounds that a search for such instances would be unduly burdensome.

In reviewing whether the SAO complied with FOIA in denying the request, the Appellate Court first ruled that Martinez had not “reasonably described a record.” The court noted that FOIA requires a requester to “reasonably identify” the record being sought and may not simply seek “data, information and statistics” that must be “gleaned generally” or otherwise “extracted” from records maintained for other purposes. Thus, while it was undisputed that the SAO possessed records containing the data Martinez generally sought in his request, because the SAO does not specifically maintain records already cataloged or organized in a form specifically responsive to the request, the SAO was permitted to deny the request. In other words, the Appellate Court determined that querying and compiling the information responsive to Martinez’s request would have required the creation of a new record – a task not required by FOIA.

Second Request

 After the initial request was denied, Martinez attempted to revise and/or narrow his request. Concerning stingray records used in criminal prosecutions related to narcotics and terrorism cases, he requested that the SAO:

  1. “Send an email to every attorney in the SAO and ask each to identify, based on memory, any cases in which evidence was obtained using a stingray.”

  2. Conduct a server-side centralized search of e-mails for “stingray,” “IMSI catcher,” and “cell site simulator” and produce any non-exempt records.

    The SAO once again denied the request as unduly burdensome. In reviewing the denial, the Appellate Court quickly dispatched the notion that FOIA requires any polling, questioning or other query of the memories of SAO attorneys to identify specific cases that would have responsive records. Such a request for a “search” and not a “public record” itself, the court held, was not required by FOIA. 

    Concerning the request for a server-search of emails containing specific keywords, the Appellate Court considered such asearch to be the search of a database. The Court first noted that an electronic search of a public body’s electronic database is the electronic equivalent of “copying” public records. The Appellate Court found that generally, databases and their aggregate data are public records that must be disclosed unless some exemption permits their withholding. The court, however, then held that the request for a search of the database for a particular subset of information that is not otherwise already specifically cataloged by the public body in specific data fields, including general keyword searches, results in the production of a new record that is not required by the FOIA, stating: “A request for a listing or index of a database’s contents that seeks information about those contents, as opposed to the contents themselves, requests a new record.” 

     It is noteworthy, however, that Appellate Court acknowledged in its opinion that the distinction between a “search” of a database and the production of existing “public records” within a database is a “muddled” gray area. The Court recognizes that the use of databases creates a “tension” between the “well-settled prohibition” on requiring public bodies to create new records and the requirement to make electronic databases available under FOIA. We expect that this area of law will continue to evolve and that until a bright-line rule is established, public bodies are safest leaning towards disclosure instead of withholding.

     As both public bodies and the general public become more technologically sophisticated, the frequency of FOIA requests that involve database records will continue to increase. While an analysis of the specific wording of a FOIA request is necessary in every case to determine whether FOIA will require disclosure of the records sought, we provide the following general takeaways from the Appellate Court’s guidance in Hites and Martinez:

  1. FOIA requests must “reasonably describe” a specific public record sought to be disclosed. Requests for all records “showing that…” or requests for information (e.g., “the number of …”) and other similar fishing expedition-type requests should be particularly scrutinized. A request for the results of a search or for general data, information and statistics does not seek a “public record” and thus is not subject to FOIA.

  2. The production of data from existing database fields is the equivalent of copying individual paper records from a cumulative file. Thus, data from electronic databases generally are subject to disclosure under FOIA.  However, the request must seek  data in a form that already exists pursuant to the business of the public body. The data sought must already be organized in a “field” or other defined data-set, or the search must be one ordinarily performed by the public body. A request to “search” a database or a request seeking all database records containing certain keywords that are not already cataloged is not required by the FOIA.

  3. A District email server is a database. A requester can legitimately seek all emails between John Doe and Jane Roe from a certain timeframe, or already cataloged in a specific folder, or concerning a particular matter identified in the “subject” field. These kinds of requests seek records in a catalog format that is already maintained by the District’s email system (e.g., date, subject matter and username fields). A request for a search of emails containing certain “keywords” in the body, on the other hand, calls for an impermissible search and not a particular public record.

  4. In some cases, the search of a database for a result or answer may be less burdensome (often much less burdensome) than producing actual public records that are sought. It acceptable to the requester, public bodies possess the discretion to offer that option, though it is not required by FOIA.

  5. Databases and their subsets of data in narrowed fields may be public records subject to the FOIA, but the data may nonetheless be exempt pursuant to specified exemptions in the FOIA.

     

PREPARATION FOR THE POSSIBLE END OF FAIR SHARE FEE ARRANGEMENTS

APRIL 4, 2018

We are aware that most if not all of our school district clients recently received a joint email from the leaders of IASA, IASBO, the IFT and the IEA regarding the possible end of Fair Share fee deductions.  These are payroll deductions for bargaining unit members who have not elected to join the union as a full member, but who are nevertheless covered by a Fair Share fee requirement in a collective bargaining agreement.  The U.S. Supreme Court will likely rule before June 30 on whether such Fair Share deductions are unconstitutional.  As stated in the joint email, if you have Fair Share fee payers in your district, you may need to immediately cease deductions of Fair Share fees and cease remittance of those fees to the IEA or IFT as soon as the date the Court issues its decision.

Since each school district has different payroll schedules, and different lead time requirements for processing payroll, the timing of the Supreme Court’s opinion may or may not give your district time to halt Fair Share deductions before the next payroll is processed.  Because of the differences in each school district’s payroll procedures, different payroll lead time requirements, and differences in remittance practices, we cannot provide a uniform recommendation for how to prepare for this decision.  However, we can work with your Business Office to prepare or review individualized procedures to increase the likelihood that you will be able to promptly comply with the Court’s decision.

Please contact John Fester, James Petrungaro, or your primary contact attorney to discuss any questions or concerns you may have.