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.

APPELLATE COURT DECISION DEALS BLOW TO FOIA FISHING EXPEDITIONS

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 a search 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.

     

NEW RELIEF FROM ONEROUS FOIA REQUESTS MAY BE ON THE WAY

October 17, 2014

By James A. Petrungaro

A little-publicized piece of FOIA legislation that was rushed through both chambers of the General Assembly at the end of the last legislative session will soon be on its way to the Governor’s desk. If signed by Governor Quinn, House Bill 3796 would amend FOIA and create a new set of rules for responding to a “voluminous request.” Included in the relief would be additional time for the public body to respond and the ability to charge the requester fees for voluminous electronic records. The same legislation would also allow a public body to refer a requester to its website if the records requested, no matter their size, are publicly available on the website. A limited exception would apply where the requester can demonstrate an inability to access the Internet.

Scariano, Himes and Petrarca is tracking the legislation closely and, if signed by Governor Quinn, will provide a substantive review of the law’s new requirements.

PAC REJECTS ANOTHER BOARD’S PUBLIC COMMENT RULE

 October 10, 2014

By James A. Petrungaro

We recently reported that the Illinois Attorney General’s Public Access Counselor (“PAC”) rejected a public body’s requirement that an individual wishing to participate in public comment at a board meeting must publicly state her home address when providing comment to the board. In a new decision involving a separate dispute over the lawfulness of a public body’s prerequisite to addressing the board during public comment, the PAC has again ruled in favor of public access.

At issue was whether a County Board’s policy requiring anyone wishing to participate in public comment to pre-register in writing at least five-business days prior to the meeting. The PAC ruled that the onerous pre-registration requirement violates the Open Meetings Act because it does not further the speaker’s statutory right to address the board, subject only to reasonable rules of the public body that are tailored to preserve order and decorum at the meeting.   The PAC particularly noted that under the County Board’s rule, a member of the public would be obligated to register before the County was obligated to even post its meeting agenda.

Many school districts and other public bodies require some form of public comment registration at their meetings. These often take the form of a single sign-in sheet or individual public comment cards. The PAC’s decision does not address such a registration rule and we envision these requirements to be reasonably related to the orderly operation of the public meeting. Should you have any questions concerning your board’s public comment policy and rules, we are ready to assist you.

FOIA ALERT

 October 5, 2010

Many of our clients have recently received an extensive FOIA request from “Scott O’Connell” seeking disclosure of legal opinions issued to the school district by ISBE. We have prepared a model response to this request. If you have received this request and desire assistance in forming a response, please contact attorney James Petrungaro at 312-565-3100 ext. 257 or at jpetrungaro@edlawyer.com.

Changes Coming to FOIA and Teacher Evaluations

 January 13, 2010

Senate Bill 315

By the time you read this, Senate Bill 315 may have been passed by both houses on its way to Governor Quinn.  The bill clarifies the Freedom of Information Act (FOIA) with respect to the disclosure of performance evaluations and makes substantive changes to the requirements of teacher and principal evaluations under the School Code.  It is expected to be quickly signed into law to help the State’s application for Race to the Top funds.

FOIA

Under recent changes to FOIA, personnel file documents, including performance evaluations, are no longer shielded from disclosure.  In response to concerns from teachers and administrators over the potential negative ramifications of releasing performance evaluations, Senate Bill 315 adds a new Article 24A-7.1 to the School Code.  The new Article states that disclosure of teacher, principal and superintendent performance evaluations is prohibited, unless otherwise authorized by the School Code.  This addition will allow school districts to invoke §7(1)(a) of FOIA (exempting information specifically prohibited from disclosure under federal or state law) in response to FOIA requests for teacher, principal, or superintendent evaluations.

Please note that the prohibition,  on its face,  relates only to teacher,  principal and superintendent evaluations.  Unless contrary guidance is issued by the Attorney General’s office, it appears that the performance evaluations of other administrators and non-certificated employees remain subject to release under FOIA.

Teacher Evaluations

Senate Bill 315 makes several changes to teacher and principal evaluations.  Some of those changes, such as incorporating student growth measures into evaluation plans, are contingent on receipt of Race to the Top funding, or on the state providing adequate funding if Race to the Top funds are not awarded to Illinois. However, the following changes are mandatory regardless of Race to the Top or state funding:

  •  Changing evaluation ratings to “Excellent”, “Proficient”, “Needs Improvement” and “Unsatisfactory”;
  •  Allowing peer evaluation, subject to union agreement;
  • Providing professional development plans for teachers rated “Needs Improvement”;
  • Providing for remediation periods of shorter than 90 days, if permitted by a collective bargaining agreement;
  • During remediation, replacing evaluations every 30 school days with one midpoint evaluation and one final evaluation; and,
  • Dismissal if following remediation the teacher does not achieve a rating of “Proficient” or “Excellent”.

The bill also provides changes to the evaluation system for principals.  One notable change is that the due date for principal evaluations is pushed back from February 1 to March 1.  These changes must be made in the evaluation process by September 1, 2012.   Senate Bill 315 will be effective immediately upon becoming law.  Please contact us with any questions or concerns you may have about this, or any other, pending legislation.

Freedom of Information Act

 December 18, 2009

The amended Illinois Freedom of Information Act (FOIA) becomes effective January 1, 2010.  The amended FOIA significantly alters the procedures employed by a public body in responding to FOIA requests and makes numerous changes to the exemptions to FOIA.  It is imperative that school districts be familiar with the changes to the amended FOIA, and be prepared to take immediate action to implement the Act.

To this end, Scariano, Himes and Petrarca, Chtd. has prepared a FOIA policy, implementing procedures, and sample FOIA forms that address the requirements of the amended FOIA.  To further assist school districts in implementing the amended FOIA, we have also prepared a comprehensive “Frequently Asked Questions and Answers” document.  Please do not hesitate to contact Darcee C. Williams (ext. 247) or Jessica M. Bargnes (ext. 254) if you would like a copy of those documents.

Because the January 1, 2010 effective date of the amended FOIA is fast approaching, school districts must be prepared to immediately take the following actions:

The Board of Education should adopt an amended FOIA policy and procedures.  If your next opportunity to do so is at the January Board meeting, please do so at that meeting.

The amended FOIA requires school districts to appoint at least one FOIA officer to handle all FOIA requests.   We recommend that the Board of Education appoint two FOIA officers to ensure that one FOIA officer is available in the other’s absence.  Again, if this cannot be done until the first January meeting, please do so at that meeting.

The amended FOIA requires that the following documents be posted on a school district’s website:

  • A block diagram of the school district’s functional subdivisions;
  • The total of the school district’s operating budget;
  • The number and location of all of the school district’s separate offices;
  • The approximate number of the school district’s full and part-time employees;
  • The identification and membership of all boards, commissions and committees which operate in an advisory capacity to the operation of the school district, or which exercise control over the school district’s policies or procedures, or to which the school district is required to report and be answerable for school district operations;
  • A description of the methods whereby the public may request information and public records;
  • A directory identifying the FOIA officers;
  • The address where requests for information should be directed; and
  • A schedule of fees permitted under FOIA.

By taking action on these issues prior to January 1, 2010, the effective date of the amended FOIA, the school district will ensure that it is in compliance with the Act.

Please do not hesitate to contact Scariano, Himes and Petrarca, Chtd. to discuss your school district’s implementation of the amended FOIA.  The Firm offers, five hours of in-service each year as a complimentary service to its clients. We encourage our clients to use that time to review the changes to FOIA, and we invite you and your Board members to attend our annual client seminar on February 6, 2010, where we will present, in greater depth, on the amended FOIA.

Scariano, Himes and Petrarca, Chtd. has also compiled a number of documents to assist in the implementation of the amended FOIA on its newly updated website located at www.edlawyer.com.

Freedom of Information Act ("FOIA") request for records from CBS 2

TO: SCHOOL DISTRICTS

RE: CBS 2 FREEDOM OF INFORMATION ACT REQUEST

July 31, 2009

By now, many school districts across the Chicago metropolitan area have received a Freedom of Information Act ("FOIA") request for records from CBS 2

WBBM-TV. The request seeks, among other things, records pertaining to corporal punishment administered to students, the use of time-out rooms, and complaints relating to both. Much of the information sought is exempt from disclosure under the FOIA since it involves confidential student record information. Nonetheless, the FOIA requires the school district, as a public body, to respond to a FOIA request within seven (7) working days of receipt of the request. Your response must indicate what information is exempt, what information will be furnished, and how that information will be made available.

We have prepared a draft response to the request which can be personalized to address the records/information your district has which are relevant to the

 

CBS request. If you desire assistance in responding to the CBS FOIA request, please contact the attorney with whom you normally work.

Freedom of Information Act

 May 29, 2009

The Freedom of Information Act (FOIA) is undergoing a dramatic revision in Illinois - both in the judiciary and legislative systems. Both the judicial and legislative branches are calling for increased transparency in the government, and are taking steps to ensure that the policy of the state is clearly one of openness and accountability.

RECENT SUPREME COURT DECISION

On May 21, 2009, the Illinois Supreme Court affirmed an appellate court decision which held that: (1) disclosure of a superintendent's employment contract did not constitute an invasion of person privacy for purposes of exemption from the Act's disclosure requirements; and (2) a superintendent's employment contract does not fall into FOIA's exemption for personnel files. Stern v. Wheaton-Warrenville Community Unit School District 200, 2009 WL 1416105.

This case at issue arose when Mark Stem, a resident of Wheaton-Warrenville Community Unit School District 200, filed a FOIA request for the superintendent's contract. School District 200 denied the request on the basis that, because the contract is contained in the personnel file, it is exempt from disclosure. After involving the Illinois Attorney General, and appealing the denial of his request to the Board of Education, Stem filed a complaint in the Circuit Court of DuPage County seeking disclosure of the contract under FOIA. The Circuit Court held in favor of the school district, finding that a superintendent's contract should reasonably be found in a personnel file, and that a personnel file is exempt from disclosure under FOIA.

Stern appealed to the Appellate Court, which reversed the Circuit Court's decision on grounds that a superintendent's contract would bear upon his or her public duties and was thus subject to disclosure under FOIA.

The Supreme Court affirmed the Appellate Court's decision and held that: (1) the Superintendent's contract bore upon his public duties, thus subjecting it to disclosure under FOIA; and (2) the physical location of a document bears no relation to whether it must be disclosed. The Court recognized that one purpose of FOIA is to allow access to documents that bear upon an employee's public duties, while the intent of the personnel files exemption is to protect an employee's personal privacy. In this instance, the superintendent's contract bore upon public duties, and its disclosure would most likely not affect his privacy. The court stated that private information that may be in the contract, such as a social security number or a bank account number, could be redacted before the document was disclosed in response to a FOIA request.

Accordingly, school districts should be aware that employees' contracts will be subject to disclosure under FOIA, so long as the contract bears upon that employee's public duties, subject only to the redaction of information that if disclosed would clearly violate an employee's personal privacy rights. This holds true regardless of the physical location of the document.

LEGISLATIVE ACTION

In the wake of this Supreme Court decision, which clarifies FOIA's call for governmental transparency, the Illinois General Assembly rushed Senate Bill 189 through both Houses; it is a dramatic re-write of portions of the Open Meetings Act and FOIA. As of Thursday, May 28, 2009, both houses had unanimously passed Senate Bill 189 and it was sent to Governor Quinn. If Governor Quinn signs Senate Bill 189, it will become law.

Senate Bill 189 clearly states that there is a presumption that all records in the custody of a public body are presumed to be open to inspection or copying. If a public body asserts that a document is exempt from disclosure, the public body must be able to prove as much by clear and convincing evidence.

The new legislation would also amend FOIA by clarifying that all public documents and related communications, including email messages among officials and employees, will be subject to disclosure pursuant to FOIA. Additionally, under Senate Bill 189, the timelines for complying with FOIA will be shortened, and if a public body fails to respond to a request within the designated timeline, the public body is prohibited from charging for copies. Further, if a public body denies a request, and such denial is subsequently overturned, costs will be borne by the public body, and penalties for non-compliance will be imposed.

The new legislation would create a Public Access Counselor, a position that will be a part of the Illinois Attorney General's office, and will be charged with training and regulating state employees in the distribution of public information, as well as issuing binding opinions as to whether documents requested are exempt under FOIA. Those decisions may be appealed to the circuit court pursuant to the Administrative Review Act.

Finally, Senate Bill 189 requires each public body to appoint Freedom of Information Officers, which will have special duties under the Act with regard to compiling and disclosing documents.

If you have any questions regarding the impact of the Supreme Court's ruling, please contact our offices. As the legislative process comes to a close with respect to amendments to the Act, we will provide you additional updates regarding your obligations when faced with a FOIA request.

ILLINOIS POLICY INSTITUTE FREEDOM OF INFORMATION ACT REQUEST

IMMEDIATE ATTENTION REQUIRED

September 9, 2008

By now, many school districts across the Chicago metropolitan area have received a Freedom of Information Act ("FOIA") request for records from the Illinois Policy Institute. The request seeks, among other things, records pertaining to private providers of various services to the school district. Much of the information sought is exempt from disclosure under the FOIA since it involves the creation of a new record. Nonetheless, the FOIA requires the school district, as a public body, to respond to a FOIA request within seven (7) working days of receipt of the request. Your response must indicate what information is exempt, what information will be furnished, and how that information will be made available. Additionally, if the District denies the request, the response must indicate the basis for that denial.

We have prepared a draft response to the request which can be personalized to address the records information your district has which are relevant to the Illinois Policy Institute request. If you desire assistance in responding to the Illinois Policy Institute FOIA request, please contact the attorney with whom you normally work.

CBS 2 FREEDOM OF INFORMATION ACT REQUEST

MEMORANDUM IMMEDIATE ATTENTION REQUIRED

JULY 31, 2008

By now, many school districts across the Chicago metropolitan area have received a Freedom of Information Act ("FOIA") request for records from CBS 2 WBBM-TV. The request seeks, among other things, records pertaining to corporal punishment administered to students, the use of time-out rooms, and complaints relating to both. Much of the information sought is exempt from disclosure under the FOIA since it involves confidential student record information. Nonetheless, the FOIA requires the school district, as a public body, to respond to a FOIA request within seven (7) working days of receipt of the request. Your response must indicate what information is exempt, what information will be furnished, and how that information will be made available.

We have prepared a draft response to the request which can be personalized to address the records/information your district has which are relevant to the CBS request. If you desire assistance in responding to the CBS FOIA request, please contact the attorney with whom you normally work.